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IBM Says SCO Willfully Failed To Detail Evidence 188

Posted by Zonk from the suspiciously-vague dept.
Robert wrote to mention a piece on CBR Online where the latest volley in the SCO case is covered. IBM is now accusing SCO of having acted in bad faith when they opened the trial against IBM, by being purposefully vague in their evidence. From the article: "All in all, according to IBM, SCO's evidence filing makes it impossible for the company to defend itself. 'By failing to provide adequate reference points, SCO has left IBM no way to evaluate its claims without surveying the entire universe of potentially relevant code and guessing ... Since only SCO knows what its claims are, requiring such an exercise of IBM would be as senseless and unfair as it would be Herculean.'"
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IBM Says SCO Willfully Failed To Detail Evidence More

IBM Says SCO Willfully Failed To Detail Evidence

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  • Two Words for IBM--Edit Distance (Score:4, Interesting)

    by eldavojohn ( 898314 ) * <eldavojohn@noSpAM.gmail.com> on Thursday April 06, 2006 @10:03AM (#15075683) Journal
    In college, my professor had a class of a couple hundred freshmen and the problem of making sure no one was copying anyone else's code for trivial homework assignments. It's a similar problem, how do we solve it?

    His solution was a simple edit distance program that checked every pair-wise set of homework assignment's source code. You could thus find the highest areas of similar work between two pieces of code or even documents. A simple algorithm [wikipedia.org]--it's the engineer way.

    When I took a course in computational biology (or bioinformatics), I was enlightened to the BLAST [wikipedia.org] and FASTA [wikipedia.org] algorithms that could be useful in this case. Basically, you could search by global alignment or some form of local alignment (reducing and increasing complexity of the algorithm, respectively). These algorithms work already with protein chains and DNA so they are more than capable of large sets of data computed quickly and effectively.

    The article lists SCO submitting 45,000 pages of evidence and materials--of which I assume is SCO's own work. What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against. The localized areas that score the highest could then be inspected by IBM and give their lawyers ample time to start a defense against points in the documents that will probably be areas of attack for SCO. In fact, it's entirely possible that SCO used this method to quickly identify what it thought to be points of infringement in code.

    But of course, like most Slashdot posters, I'd rather just see the judge turn to SCO and say, "Bullshit, case dismissed..." and proceed to tell them off like Judge Judy giving a deadbeat father a taste of the back o' her hand.

    • Case dismissed???? NO WAY! (Score:3, Insightful)

      by Anonymous Coward
      This is one case that needs to be taken to the end by IBM, putting SCO in the grave and establishing base of case law to protect linux in the future. Stopping now would not be a good idea. And besides that, it's not IBM's job to find with specifity what code SCO accuses them of infringing. At this point it would seem that SCO can not find anything of the sort. After all of this time (3 years?) the hot air in SCO is blowing out there asses as they wined down like a deflated balloon.

    • Re:Two Words for IBM--Edit Distance (Score:5, Informative)

      by AstrumPreliator ( 708436 ) on Thursday April 06, 2006 @10:20AM (#15075799)
      I don't know much about the BLAST and FASTA algorithms, but the Levenshtein distance just compares strings. Simply rename everything and tweak the structure of your code somewhat and it can give false results. I know here at university they run all source code through a program (forget the name) that analyzes control flow and other program characteristics and then compare it to those of other students, past students, and source code from the web.

      I don't know how effective the program is as I don't cheat, but I do know a few students in the department that have nearly been suspended.

      However, your last statement is spot on, the judge should throw them out of court ;).

      • Re:Two Words for IBM--Edit Distance (Score:5, Interesting)

        by networkBoy ( 774728 ) on Thursday April 06, 2006 @10:34AM (#15075896) Journal
        There are problems with that system though.
        My wife's writing style is rather uniform and predictable.
        The database she works from is the same regardless of the calss she is taking, she writes papers and whatnot for her masters/doctoral work (I'm coding an indexing on-line library of reference documents that is more easily searchable).
        This database of documentation is a superset of what she had when she was taking her BS degree classes (same data and sourcework, plus new sourcework and data, plus her previous papers).
        She has been brought up for plagerism because her paper too closely resembled another paper turned into the same on-line system to detect cheaters, and a published work on the same subject. Problem is, the paper that was used as a reference was one of her bachelor papers, and the published work was also hers (thus no plagerism). Had the teacher not discussed this with her before talking with the dean, this could have turned out rather badly.

        How are systems like this to defend against such issues, I for one do not trust that every teacher / prof / dean will do the right thing, and would rather rubber stamp a transcript with the expelled mark for plagerism rather than look at the possibility that the student is simply leveraging some of their previous hard work...
        -nB
        • Slightly tangential, but in an academic situation, it's also considered very naughty to resubmit work created for previous assessment for the same reason that it's naughty to use open source software libraries. The assignment is supposed to be created specifically for the situation, and using available work, even if it's not plagiarism, is not the same as creating new work. In my faculty's policy it's clearly stated that we're not to submit work from old assignments without explicit permission from the de
          • It's not that she re-used the work, but that they were "substantively similar". This is to be expected when your focus of study is one narrow field, of which you are one of only a handful of people looking at, and for which you are already published.

            She did nothing wrong, and in fact the portion the computer highlighted were her critiques of legal documents, used as backup. The premise of the papers were entirely different.

            Re-submitting a previous work is against the rules, yes. Leveraging your previous

        • Re:Two Words for IBM--Edit Distance (Score:4, Interesting)

          by Chris Burke ( 6130 ) on Thursday April 06, 2006 @11:56AM (#15076826) Homepage
          This is why being a programmer has made me even more against having machines in charge. It should be unthinkable that you could use a computer program to detect plagiarism and expell someone without having a human being look into the issue. Computers execute hard-coded algorithms without fail, which does not account for the algorithm itself being flawed, or situations outside the scope of the algorithm (like the "plagiarism" coming from one of the author's previous works).

          I was a TA for an operating systems class, and we used automated tools to detect possible plagiarism, but this was only the first step. Human inspection revealed that some was in fact plagiarism, but there were also false positives. We weren't exactly surprised; it was assumed this was possible and that human investigation was necessary. We never considered "rubber stamping" the verdict of the program.

          People who trust computers don't understand them. People who use computers to make decisions for them (rather than provide data to inform their own decisions) are lazy. Combine the two, and bad things happen.

        • How are systems like this to defend against such issues

          By doing exactly what they did--bringing in the original student and other actual people to determine the truth of the charges.

          I for one do not trust that every teacher / prof / dean will do the right thing, and would rather rubber stamp a transcript with the expelled mark for plagerism

          Of course not. Colleges have procedures for handling this kind of situation. I've never heard of one that's fully automatated, with no chance for the accused to r

        • She has been brought up for plagerism because her paper too closely resembled another paper turned into the same on-line system to detect cheaters, and a published work on the same subject. Problem is, the paper that was used as a reference was one of her bachelor papers, and the published work was also hers (thus no plagerism). Had the teacher not discussed this with her before talking with the dean, this could have turned out rather badly.

          For the teacher, yes. The dean would look at the name on the paper
      • What you should do (and indeed we do do) is tokenise the file first, so all variable names and the like disappear into the mist before you start comparing them.

      • Re:Two Words for IBM--Edit Distance (Score:4, Informative)

        by FellowConspirator ( 882908 ) on Thursday April 06, 2006 @01:13PM (#15077624)
        In fact, it's quite simple... Reduce the two code bases to a lexical parse of the actual code. Compare the structure rather than the arbitrary names of the symbols that compose it. It's quite simple to do.

        Simple as it is (IBM even writes several tools to do such a thing and markets them to various niche markets), it wouldn't be helpful in this case. SCO no longer maintains that there is any "SCO" code in Linux. They now claim that certain "technological concepts" related to UNIX were improperly used, but they make the assertion without clear explanation of what they mean by that.

        Searching for plagiarism would be cake... some ambiguous intellectual abstraction? Now that's hard!

        If you look at the claims SCO started with, and what they are now attempting to argue in court, there's no relation. How the case has played out so long without being thrown out is anyone's guess.
    • It's not, as IBM pointed out, IBM's job to find places that it did or didn't copy.

      As a defendant, their job is solely to disprove the other side's case.

      SCO doesn't have a case. I don't mean that their claims have no merit, although they don't. I mean they have literally not actually made a case. They have refused to sit down and say 'This is our code, and this is where you illegally copied it into Linux.'.

    • If you check out the post refering to Groklaw down the page, this is more complex than a simple "compare two assignments" problem. Although, IBM definitely has enough computer scientists and hardware to tackle the problem. Given that, it is not in their interest to do this. SCO brought the lawsuit and has the burden of proof. A defendent is not obligated to compare the code and notify the court (and SCO) or areas of possible infringement. That would effectively let SCO off the hook and potentially give
    • The article lists SCO submitting 45,000 pages of evidence and materials--of which I assume is SCO's own work. What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against. The localized areas that score the highest could then be inspected by IBM and give their lawyers ample time to start a defense against points in the documents that will probably be areas of attack for SCO. In fact, it's entirely possible that SCO used this method to quickly
    • The problem is that SCO is obligated to disclose the evidence. SCO has failed to illistrate the exact infringment. It is not the defendant's duty to illistrate the infringment. Requiring IBM to find the infringment would be like asking an accused rapist to find the evidence of the rape and defend against it. Throwing 45,000 pages of information to a person and saying the evidence is there, doesn't cut it, especially when it only 'shows' infringment in 3 out 201 issues. In court you are required to show each
    • In college, my professor had a class of a couple hundred freshmen and the problem of making sure no one was copying anyone else's code for trivial homework assignments. It's a similar problem, how do we solve it?

      I don't know how teachers solved that problem but as a uni student in economics (I'd know better now than to study something akin to astrology, but back then I still listened to my parents), my simple fix to the other student's pressing calls for help was "sure, here's a working sorted program for
    • It's not that simple... Much of the code involved is doing things in well defined ways - let's face it, operating systems do a lot of boring things like copying data from one buffer to another where there isn't much room for creativity. If you give a number of programmers the assignment of writing a function in C that adds two integers together, I'll be damned if you don't get a lot of entries that look like or exactly like this without any copying:

      int add(int x, int y) {
      return x + y;
      }
      • What about all the ERROR CHECKING!?
        [yes, this is a joke]

        int add(int x, int y, int *p_ans) {
        int ans;

        ans = x + y;

        if (x >= 0) {
        if (y >= 0) && (ans x || ans > y))
        return -1;

        *p_ans = ans;
        return 0;
        }

        Now, if IBM "independently invented" that, y
      • *cough*.. I really meant "preview"...

        What about all the ERROR CHECKING!?
        [yes, this is a joke]

        int add(int x, int y, int *p_ans) {
        int ans;

        ans = x + y;

        if (x >= 0) {
        if (y >= 0) && (ans < x || ans < y))
        return -1;
        }
        else if (y < 0 && (ans > x || ans > y))
        return -1;

        *p

    • I would just like to add: although there's 45,000 pages submitted by SCO, 33,000 pages of that were made 'useless' when SCO dropped one of their hundred-odd points of argument.

      That's right: 33,000 pages were submitted regarding just one of those points and now they've dropped that one point anyway!
    • It should be noted that IBM does have excellent code separation procedures, which are strongly enforced. The problem is that SCO claims that code that IBM felt it had every right to use DIRECTLY, IBM did not actually have every right to use. The history (or part of it) goes back to the purchase of Sequent. They made a mid-range parallel supercomputer, and solved many of the problems which are the cornerstone of modern multi-processor operating systems. That technology was merged into Unix by Sequent. IBM bo

    • Re:Two Words for IBM--Edit Distance (Score:4, Insightful)

      by kfg ( 145172 ) on Thursday April 06, 2006 @11:39AM (#15076635)
      I think you've missed the point. IBM is perfectly aware of how to compare code for potential copying.

      What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against.

      And here is IBM's point, that SCO has not, in fact, actually identified documents which they claim are infringing, leaving IBM the task of having to, essentially, do SCO's work for them by searching their entire UNIX codebase, all of it, looking for code that infringes.

      And that's just not how it works. SCO, in order to make a claim, has to, well, actually make a claim. i.e. IBM did this and this here and here which infringes. IBM only has to answer to the claim and demonstrate its falsity with documents relating to the specifics of the claim; and only the specifics of the claim.

      The court does not do any of this. It isn't any of the court's business. The litigants do this and their lawyers present their arguments to the judge and jury and only documents presented at trial have any relevance to actually deciding the case.

      SCO is trying to play a liable until proven not liable game, making IBM do the work to produce the evidence against themselves. Against a nonspecific claim. The justice and logical problems involved in this are the very reason the founding fathers adopted the innocent until proven liable way of doing things.

      SCO: Somewhere in the known universe IBM possesses an invisible pink something or other. We don't know what that something or other is though, until IBM produces it for us, but as soon as they do we'll claim it's ours.
      IBM: We cannot show the entire universe to the court to demonstrate our non possession of an invisible something or other.

      SCO is seeking liability on the part of IBM by the above argument.

      IBM is simply saying that SCO needs to say exactly what they allege IBM possesses and where they claim it is to be found, along with their evidence supporting the allegation. Then, and only then, can IBM actually defend themselves against the claim by showing the court that SCO's presented evidence is false by presenting evidence of their own.

      IBM is more than willing and able to apply the methods you outline, as soon as SCO legitimately identifies what code the test is to be made against.

      Certainly IBM can be compelled to produce evidence for SCO's use, that's what this is all about, but you might want to go read the Fourth Amendment for the basic rules on the legal limits of such compulsion.

      Think about it. How would you defend yourself against the claim that you had murdered, someone, sometime, we don't know who or when, but you did it?

      The fact is you couldn't, unless you could account for your actions over your entire lifetime to a legal certainty.

      Criminal and civil rules are different, but in this case they are close enough for hand grenades, as the rules for both are based on the same legal philosophy.

      To wit, the accuser must present evidence supporting the claim before the case can even go forward to trial, and the accused need only defend themselves against that evidence. It is the reponsibility of the accuser to identify any evidence that may be held by the accused. The accused need only defend themselves against the claim, not be compeled to twist their own hanging rope.

      KFG
    • The article lists SCO submitting 45,000 pages of evidence and materials ... What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against.

      Man... I'd hate to be the inter that got that one...

      "Hey, Tim. You've done some really good work lately. We really like where you're going. That's why we're trusting you to scan these ultra-important legal documents. Just let us know when you're done, and keep up the good work."
    • Aside from my opinion that SCO should specify what they believe was copied, rather than IBM prove that none of thier zillion lines of AIX and Linux breach copyright.

      This Edit Distance would work rather well for "breach of copyright" as what is protected is particular text and not general ideas or methods. If I lokked over your shoulder and saw a neat algorithm which I them implemneted myself this would not violate your copyright unless I did a line for line copy of you code.
    • What IBM could choose to do is have them scanned and provide the court with the alleged infringing documents to check against. The localized areas that score the highest could then be inspected by IBM and give their lawyers ample time to start a defense against points in the documents that will probably be areas of attack for SCO.

      First, it is not IBMs job to identify things that might be infringing. It is up to SCO to identify them.

      Second, forcing IBM to waste its resources identifying "possible" attacks an

  • Grocklaw's take (Score:5, Informative)

    by Simon Brooke ( 45012 ) * <stillyet@googlemail.com> on Thursday April 06, 2006 @10:03AM (#15075685) Homepage Journal

    Grocklaw's take here, and it makes good reading: [groklaw.net]

    "What an extraordinary response to the court's orders. As IBM points out, because SCO fails to "identify with specificity the versions, files and lines of System V, AIX, Dynix and Linux material that IBM is alleged to have misused," as a practical matter, it just isn't possible to evaluate SCO's claims. We're talking about a lot of code. IBM references a Declaration of Todd Shaughnessy, which we don't yet have, which says "there are at least 11 versions, 112,622 files and 23,802,817 lines of System V code potentially implicated by SCO's claims. There are at least 9 versions, 1,079,986 files and 1,216,698,259 lines of AIX code potentially implicated by SCO's claims. There are at least 37 versions of the base operating system, and 472,176 files and 156,757,842 lines of Dynix code potentially implicated by SCO's claims. And there are at least 597 versions, 3,485,859 files and 1,394,381,543 lines of Linux code potentially implicated to SCO's claims." Precisely where in this massive pile of code should IBM start digging?

    ...

    "I feel sure we'll hear more on this topic at the hearing coming up. I have this vague memory that SCO told Magistrate Judge Wells, when she asked them at a recent hearing if they'd found anything of use in those materials, that they had."
    • IANAL, but surely the burden of determining which code SCO claims has been illegally lifted lies solely upon SCO. This would normally happen in the Discovery phase of a case I believe, and the cost would borne by SCO since they brought the accusation to court. If they are unwilling or unable to determine which code has been compromised, then surely the judge can simply dismiss the case? If I accuse you of harming me in some way but I am unable to produce any evidence to support it, then I don't have a case.

  • SCO actions... (Score:5, Insightful)

    by liliafan ( 454080 ) * on Thursday April 06, 2006 @10:03AM (#15075690) Homepage
    Since the general opinion seems to be that SCO is simply attempting to cause discord in the unix market, is this really so suprising?

    Lets look at the facts here, SCO is filing lawsuits all over the place, being very vague on the specifics of the lawsuit, all of which ties the courts up and drags out the cases. There is a lot of publicity about how *NIX variants may be breaching all these copyrights, IP's, and licenses, which in the long term reduces confidence in *NIX since consumers can't be sure that the product they are investing money in may suddenly get pulled.

    IMHO the money M$ has pushed towards SCO is entirely related to this case, by tying these vendors to the courts and reducing consumer confidence people are more likely to buy M$ products rather than face the risk of getting hurt with the outcome of these lawsuits.

    I think these cases should all be thrown out, SCO has a fairly damning track record of lawsuits for the sake or lawsuits, regardless of the validity of the claims.
    • This case is such BS. Makes me angry. I think the following points vary between obvious and mostly-true:
      -SCO is actually pretty indifferent to how the case (a contract dispute with IBM) comes out.
      -This case exists for the sole purpose of making people worry whether there's something dangerous about using or contributing to Linux
      -As such, its value is directly proportional to its duration in time, and has nothing to do with the outcome, which will be a dismissal or a summary judgment for the defendant
    • Yeah, but based on some actions IBM has taken in positioning with Microsoft [slashdot.org], the move may backfire. IBM is one of the only companies that, if they think they will win, will continue to prosecute, even after it becomes more profitable to settle. Some call it altruism... others think its just revenge... the point is, you fuck with IBM and they make an example out of you.
  • In other breaking news, water is wet.

  • Comment removed (Score:5, Funny)

    by account_deleted ( 4530225 ) on Thursday April 06, 2006 @10:08AM (#15075723)
    Comment removed based on user account deletion

  • what no groklaw link? (Score:3, Insightful)

    by Suppafly ( 179830 ) <slashdot@sup p a f l y .net> on Thursday April 06, 2006 @10:08AM (#15075724)
    How can you have a sco v ibm story and not link to groklaw?

  • Wow 198 of 201 items without evidence. (Score:5, Funny)

    by LiquidCoooled ( 634315 ) on Thursday April 06, 2006 @10:09AM (#15075737) Homepage Journal
    The other 3 items are now listed here in all their glory:

    //

    /*

    */

    IBM Willfully copied these lines and should burn in hell.

  • Nasty tactics (Score:4, Insightful)

    by clevershark ( 130296 ) on Thursday April 06, 2006 @10:16AM (#15075774) Homepage
    The goal of SCO's intentionally vague requests seem to be to essentially consume the defendant's resources. It's more a fishing expedition than a court case, and falls in line with SCO's FUD strategies.

    • Comment removed (Score:5, Insightful)

      by account_deleted ( 4530225 ) on Thursday April 06, 2006 @10:25AM (#15075839)
      Comment removed based on user account deletion

      • Re:Nasty tactics (Score:3, Informative)

        by Theatetus ( 521747 )
        After all, SCO isn't actually producing anything

        You forgot their cell-phone spamming multilevel marketing scheme [slashdot.org].

      • >>The goal of SCO's intentionally vague requests seem to be to essentially consume the defendant's resources.

        The goal of SCOX's original filing was to annoy IBM enough to get a quick pay-off or buy-out to silence them, since they knew their business was sliding steeply downhill.

        What they got instead was a "millions for defense, not one cent for tribute" response, that they now have to make their case against.

        As well as a countersuit, and a suit from Red Hat claiming Lanham Act offenses, and from Novel
      • SCO isn't intent on winning. The way things work is like this: Companies with a vested interest in discrediting Linux, IBM, FOSS etc. (that's Microsoft for you, as well as Sun and maybe others) pump money into SCO to keep the trial alive for as long as possible. For them, it's an investment; pay money to discredit your competitors and gain an edge in the market. The longer the trial takes, the more FUD there is, so they're interested in a long trial. SCO's executives, like McBribe etc., receive money [1] to
        • >>The longer the trial takes, the more FUD there is...

          But the near-instantaneous deconstruction of SCOX's claims in the tech press, Groklaw, etc., has only reduced the available avenues for FUD'g Linux by claiming infringement from UNIX.

          You can tell this by MSFT's returning to their "Get the (non)Facts" nonsense, and Monkey-Boy's recent attempt to claim patent problems.
        • If it turns out that SCO had nothing though, IBM may be able to pierce the corporate veil and go after the board of directors, the shareholders and anybody who backed them. If it turns out that some other large corporation put SCO up to this (financially or otherwise) they could be in alot of trouble (let alone McBride et. al.).
      • Oh, I'm not saying it's going to work... just that they've foolishly embarked on that road. SCO paid a lot for the sort of technology that Linux distros now provide for free, so they had a choice of admitting that they had made bad investments in the past, or attempt to put the legal blame on others for their own bad decisions.

        Their mistake was in going after IBM with the obvious goal of gaining a quick money settlement, which IBM wasn't about to pony up. Yet another bad decision from McBride & the gang
      • > Seeing the financial state that SCO is in, all of this legal action is simply
        > going to consume it's last resources.

        How much is SCO really spending on the case?

        It doesn't take a lot of effort to let IBM does all the work of trying to "prove their innocence" while SCO sits back and says "I'm not satisfied, show me more, it's obvious you're guilty of something but I won't tell you what it is because I'm too lazy to spend any resources to make my case."

        It's one of the key reasons for the assumption of

  • IBM's stance (Score:4, Insightful)

    by malikvlc ( 889549 ) on Thursday April 06, 2006 @10:30AM (#15075868) Homepage

    What I find really enjoyable is the more-aggressive stance IBM's lawyers have taken in recent filings.

    Not trying to call them pansies for their actions in the past, and clearly they understand the US court system far better than I ever hope to; but I know I'm not the only one that has been frustrated by all the shenanigans that SCO's lawyers and management have been allowed to pull since this thing started three freekin years ago.

    But IBM hasn't pulled any punches lately, going for the jugular with this reply memo and its requests for discovery (asking for details in SCO's relationship with Baystar is gonna reveal beaucoup scummage, imho).

    Anyone have a deathwatch-type clock running for SCO?

    • Re:IBM's stance (Score:4, Insightful)

      by LWATCDR ( 28044 ) on Thursday April 06, 2006 @11:08AM (#15076246) Homepage Journal
      Actually IBMs lawyers tactics have been simple, effective, and brilliant.
      They knew SCO didn't have a case so step one was to cooperate with the judge and be as easy to work with as possible. This puts them into the Judge's good graces early. They didn't need to play hard ball from the start so they built up good will while SCO built up bad will.
      Step two. Now that the Judge is good and ticked at SCO and happy with IBM DROP THE HAMMER. IBM can now so their anger at SCO for all hoops that they tried to put IBM through and the Judge is now on IBMs side. The Judge will now actually be glad to see IBM take charge.
      IBM turned the David vs Goliath battle into a battle between a spoiled brat of child and a wise old man.
    • Anyone have a deathwatch-type clock running for SCO?

      Good luck. This has been going on for 3 years. I don't think this will end anytime soon. SCO will still find a way to delay/bog down the trial. I ultimately believe SCO will go down in flames. I just don't think it'll be as soon as we think.

    • Re:IBM's stance (Score:3, Interesting)

      by greg_barton ( 5551 ) *
      ...I know I'm not the only one that has been frustrated by all the shenanigans that SCO's lawyers and management have been allowed to pull...

      Have you ever studied Aikido? [usaikifed.com] It's a martial art that stresses defense, and specifically using the attacker's energy against them. In Aikido you let the attacker attack, as hard as they can. Only when they become off balance, often by attacking too hard, do you "help them" to the ground.

      In this light the IBM strategy makes perfect sense: let SCO do as much as possib

      • Have you ever studied Aikido? It's a martial art that stresses defense, and specifically using the attacker's energy against them. In Aikido you let the attacker attack, as hard as they can. Only when they become off balance, often by attacking too hard, do you "help them" to the ground.

        I was thinking more of hard Aikido (where you occasionally punch the other guy) or Ninpo, where you actively control the space and manipulate the other guy into beating themself down.

  • Bad Faith For Dummies (Score:3, Insightful)

    by rewinn ( 647614 ) on Thursday April 06, 2006 @10:39AM (#15075935) Homepage

    "....SCO tells the court that it has provided 'color-coded illustrations', 'line-by-line source code comparisons' and 'over 45,000 pages of supporting materials' ...
    ... 33,000 of those pages concern item 294, which SCO abandons in its opposition brief ....
    ....while the Final Disclosures include color-coded illustrations and line-by-line source comparisons, they do not do so with regard to any of the 198 items at issue."

    I don't want to be "piling on" but if IBM is correct in its analysis of SCO's, it would seem that SCO is writing the book on how to look like they are acting in bad faith.

    Do they really think IBM would not notice and point out to the judge these glaring gaps?

    • Do they really think IBM would not notice and point out to the judge these glaring gaps?

      That part doesn't matter.

      SCO isn't in this to win a judgement against IBM.

      SCO is in this because:
      #1. Pump-n-dump SCO stock. Almost every SCO executive has dumped all of their SCO stock.

      #2. Make money from ...someone... who will pay to fund SCO's legal battle ... and possibly slow the Linux migration rate.

      #3. McBride gets more media attention.

      When you look at that way, every one of their steps makes sense.

      • >If I remember correctly: BSF was paid partially in SCO shares. That would make BSF interested in the financiall well being of the company. If they are not acting in the best interest of the company (like a pump and dump scam) there could be some trouble for that law firm. Let alone the possible corporate veil piercing

        Hmmmmm.....

        If so, a shareholder lawsuit, with recourse against the lawfirm, may be a logical step.

        I wonder who's selling malpractice insurance to that law firm?

    • Do they really think IBM would not notice and point out to the judge these glaring gaps?

      I think that's probably irrelivant. It wouldn't be if your goal was to win. If, however, your goal is just to get rich and maintain stock prices then it doesn't matter. The only important thing to SCO management in that case is that you managed to keep a case going for three years without showing a shred of real evidence.

      In the mean time, more and more of McBride's stock options are vested and free to be sold.

  • Indictment of the US "Justice" system (Score:5, Insightful)

    by Mostly a lurker ( 634878 ) on Thursday April 06, 2006 @10:45AM (#15075995)
    It is now three years since The SCO Group (then called Caldera) first initiated a baseless lawsuit against IBM. In that time, they have produced no credible evidence. They have, however, spread all kinds of lies aimed at damaging Linux in the marketplace, hiking their stock price and trying to press IBM into a settlement as cheaper than dealing with absurd discovery demands (mostly granted).

    How can it be possible to put a corporation to tens of millions of dollars of direct legal costs and hard to estimate indirect damages without ever needing to demonstrate any evidence of a case to answer? Judge Kimball, himself, stated in his decision on summary judgment (over 18 months after the case was originally initiated) that it was "astonishing" that SCO had provided no evidence, in spite of all their public pronouncements, but then said it was premature to render a decision because SCO might still be able to find some evidence somewhere of some wrongdoing through the discovery process. This has been explained as necessary to avoid the risk of SCO later making a successful appeal.

    It seems to me that the US legal system is designed to make money for lawyers and the interests of the parties themselves is purely secondary. I fear comparison with the 19th century British system lampooned so sucessfully by Dicken's Bleak House is not kind to the current US legal system.

    • It seems to me that the US legal system is designed to make money for lawyers and the interests of the parties themselves is purely secondary.

      Congratulations!

      You have successfully introduced the hammer to the head of the nail with sufficient velocity.

      You have demonstrated a keen and piercing insight into the U S Legal system that depressingly few Americans posses.
      • Most politicians are lawyers. Hence lawyers write the laws. Most judges are former laywers. Hence lawyers interpret and enforce the laws. Most lawyers are paid by the hour. So basically since lawyers run the show, they're able to set things up in such a manner as to make themselves the most money at the cost of everyone else. They've also made sure its nearly impossible for anyone to go to court without a lawyer.
    • It's very clear what IBM's strategy is. Make sure there is absolutely no possible grounds for appeal, and then go after SCO for lawyers fees which will be more than their net worth. They may even go after the corporate officers personally, who have been profiting from this insane lawsuit.
      • Make sure there is absolutely no possible grounds for appeal, and then go after SCO for lawyers fees which will be more than their net worth.

        No, SCOX will be dead by the time IBM's counterclaims are heard. The Lanham act claims are a slam-dunk, and they are worth more money than SCOX has had in the past few years.

        They may even go after the corporate officers personally, who have been profiting from this insane lawsuit.

        Not to mention BSF - who have a clause in their contract stating that they get a large sl
    • It is now three years since The SCO Group (then called Caldera) first initiated a baseless lawsuit against IBM. In that time, they have produced no credible evidence. They have, however, spread all kinds of lies aimed at damaging Linux in the marketplace, hiking their stock price and trying to press IBM into a settlement as cheaper than dealing with absurd discovery demands (mostly granted).

      How can it be possible to put a corporation to tens of millions of dollars of direct legal costs and hard to estimate

  • Herculean? (Score:3, Insightful)

    by BigGar' ( 411008 ) on Thursday April 06, 2006 @10:56AM (#15076104) Homepage
    Herculean implies that the request is possible yet requires a tremendous amount of effort.

    Perhaps Sisyphean: "Of or relating to an endless and ineffective task." is more appropriate.

  • Huh? (Score:4, Funny)

    by Dachannien ( 617929 ) on Thursday April 06, 2006 @10:59AM (#15076137)
    Since only SCO knows what its claims are, requiring such an exercise of IBM would be as senseless and unfair as it would be Herculean.

    Wait a second.... who ever said that SCO knows what its claims are?

    • Re:Huh? (Score:2)

      by x2A ( 858210 )
      "who ever said that SCO knows what its claims are?"

      SCO did!

      Oh wait... I'm an idiot huh :-/

  • Innocent until proven guilty. (Score:4, Insightful)

    by Andr0s ( 824479 ) <dunkelzahn@rocketmail.com> on Thursday April 06, 2006 @11:03AM (#15076185)
    Well, I really don't understand what's all the din and noise about.

    Innocent until proven guilty is one of staples of US justice system. You can't walk into the court and say 'My neighbor stole something from me' and then leave it to the defendant to prove that everything in his appartment was actually purchased and owned by him, not you. You kinda need to say 'My neighbor stole my TV. Here's the warranty for the said TV I bought, with my name on it, and with serial of TV that's now on my neighbor's shelf.' Admittedly, the above example is vastly simplified, yet I think it would apply just fine to any copyright / patent infringement lawsuit. You can't just say you own patents to 'some of the code' in someone else's software, and then expect them to prove they own all the code - you have to specify which of the code in defendant's software is, allegedly, protected under the patents you hold.

    No proof, no case.
    • "Innocent until proven guilty" may, in fact, be a staple of the US criminal justice system, but it does not, in fact, have anything to do with contract and tort.

      This fact is (or at least, should be) basic high-school civics stuff, not something you need a JD for, people. Get it right.
      • In its basic form, 'Innocent until proven guilty' might apply only to criminal cases... but nowhere in legal world is it acceptable for prosecutor to accuse the (potential) defendant of crime without providing any evidence to support the accusation, and then expect defendant to be found guilty unless he provides evidence to his innocence.

        My point is, to establish guilt, you need evidence to support the accusation. No evidence, no case. That's really an old one. Defendant isn't supposed to provide evidence

        • Re:Innocent until proven guilty. (Score:4, Interesting)

          by faedle ( 114018 ) on Thursday April 06, 2006 @11:28AM (#15076494) Homepage Journal
          SCO's claims have been, and remain, far more complicated than that.

          SCO's claim is not necessarily that IBM stole code that they have a patent on. SCO's claim revolves around a contract that SCO and IBM have, and that IBM breached that contract by submitting code IBM wrote to Linux, and that IBM was contractually bound by SCO to not do that. SCO is not claiming (at least, from what I read) that IBM didn't write the code, just that IBM did not have the right to release the code to a third party without SCO's "approval" or licensing.

          Yes, I agree SCO is being a bunch of ninnys, and I think that this is the crux of this motion by IBM.

          That being said, this case isn't as simple as you make it out to be. SCO is saying, in essence, that "IBM violated our contract by submitting code that [contractually] we own to Linux". Part of SCO's "evidence" of this wrongdoing is the contract itself: what does the contract say? What are the terms? What constitutes "submitting" and "violation", in the framework of the contract?

          Because this is not "simple common law" we're talking about here, it requires a certain amount of arbitration.

          The system is working. I have no doubt that when this is all said and done, not only will IBM be victorious, but it will resolve once and for all the "legal questions" involving Linux and Open Source software generically.

          This is partially why I don't believe there is any real Microsoft-SCO conspiracy.. because the last thing Microsoft really wants is a clearly defined court case that resolves the IP issues involved with Linux.. and for that matter, with the whole AT&T/BSD "who really owns UNIX" issue entirely.

          SCO's initial claim may seem preposterous to us in the Open Source "community", but outside of our knowledge of the way things work, things are a bit murky. By the time this is done, the waters will be clear.. trust me. IBM wouldn't be fighting it if it wouldn't.
          • SCO's claims have been, and remain, far more complicated than that.

            Bullshit.

            SCOX has yet, to this day, refused to state what their claims are.

            That is what IBM is saying here: SCOX was orderd (three times) to specify what their claims are. To date, they haven't. That's the problem.
          • This is partially why I don't believe there is any real Microsoft-SCO conspiracy.. because the last thing Microsoft really wants is a clearly defined court case that resolves the IP issues involved with Linux.

            I agree with you overall, but I do take issue with this point. In the beginning it wasn't certain that there would be a clearly defined court case. Most Linux supporters felt that since development was done in the open it would be difficult if not impossible to get improper code accepted into the Li

          • The system is working.

            Only for sufficiently small values of working. As far as I can tell, SCO has done little but compell IBM to spend millions of dollars over several years. The system SHOULD have a way to tell such a plaintiff to "put up or shut up" early in the game, but it doesn't.

            In the process of spewing truly monumental amounts of crap, SCO has managed to implicate themselves in copyright infringement themselves including continuing to offer Linux under a licence they claimed to be 'unconstitu

        • Re:Innocent until proven guilty. (Score:4, Insightful)

          by Elfich47 ( 703900 ) on Thursday April 06, 2006 @11:37AM (#15076614)
          SCO also got a law firm that specializes in dragging things out so the other side will want to come to the table and settle. They just throw delay and delay at you until you throw your hands up in the air and give them money so they go away. They just didn't factor on the idea that IBM does not settle when the issue at hand threatens their (long term) business model.

          Once you keep in mind that the law firm SCO hired (BSF) is there to wear people down and force them to settle out of court, all of their tactics make sense. IBM on the other hand has been playing a very clean, very professional game and has been methodically boxing off SCO's avenues of attack over time. I beleive the issue at hand as to how the two sides are conducting their suits comes down to this: SCO is trying to chisel some money out of IBM. IBM is out to win.

      • but Government schools attempt to instill in the student mind that we have a reasonable and good justice system, so of course things will get left out. :)
    • Innocent until proven guilty is one of staples of US justice system.
      Tell that to the RIAA.

      Isn't it one of their policies to sue people without any real basis because most people will simply settle rather than pay large legal fees?

  • These people are brilliant (Score:3, Interesting)

    by PenguinBoyDave ( 806137 ) <david AT davidmeyer DOT org> on Thursday April 06, 2006 @11:35AM (#15076576)
    Think about it...the lawyers and other talking heads at SCO have managed, for some time now, to keep this company afloat on pure BS alone, and they did it by spoofing the courts, the media, etc. Sure...Tech people saw right past it, but the fact is that they were to do a job...to keep this company alive, and they did it for a long time. This might be the death-blow for them, but hey, they did a hell of a job getting it this far.

    Now...let the ship sink. Should have gone down long ago.

  • Only works for Mothers (Score:3, Funny)

    by DeanFox ( 729620 ) * <spam DOT myname AT gmail DOT com> on Thursday April 06, 2006 @12:46PM (#15077341)

    My Mother use to get away with this all the time when I was a kid. I'd come home from school and with a "look" she'd say, I know what happened today at school." After 5 minutes defending myself I'd usually find myself grounded. It took years before I figured it out.

    I doubt this same strategy will work with IBM. SCO says, here's a list of files. You know what you did wrong. Go to the developers, discuss it amongst yourselves and come back with your defense.

    It isn't going to work. IBM is all growed up.

    -[d]-

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