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."

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:Old version?

[Vivieus]

IBM turned it to them, as part of what SCO asked IBM to disclose.

MotleyFool is writing off SCO

[MSBob]

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

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: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.

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!".

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 /.)

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

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.

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.

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?

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

[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

[fish_in_the_c]

i didn't read every comment it here so excuse me if i repeat something. But wouldn't it be funny if through careful analysis and testimony IBM is able to prove that the engineers working on AIX actually copied code from the Linux source code instead of Vice versa? Thus require AIX to be open sourced in compliance with the GPL.

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:Summary

[jonbryce]

Quoted as posted by an ac:
That's not particularly true. If Timothy Zahn wants to take "his part" of the Star Wars universe and incorporate it into another sci fi series, I'm sure George Lucas would have a thing or two to say (and a court system ready to back him up).

I don't know about Star Wars, but lets take another example.

Celine Dion wrote some music that is included in the Titanic Movie. So we have a derivative work here.

Celine Dion owns the copyright to the music, and is entitled to control how the movie is distributed. So are the copyright holders of the movie its self.

If Celine Dion were to allow this music to be included in another movie, the authors of The Titanic would have no rights *under copyright law* to control the distribution of this movie.

They may have a contract with Celine Dion that says she can't allow this to happen, but they would have no right to sue record stores for distributing copies of this other movie. The record stores have permission from Celine Dion, the copyright holder, and that's all that matters.

Again, if they didn't own the copyrights to either part of the derivative work, as is the case with SCO, they would have absolutely no case.

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. :)

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.

Re:Information content analysis

[dj.delorie]

No, the information content of an event is the difference between the information you have before the event (probabilities) and the information you have after the event (actualities). If the event can be predicted with certainty, it adds no information. Look up Claude Shannon for a history of the work in this field.

Re:The thing that's most amazing to me..

[Best ID Ever!]

They haven't refused. They've complied. Remember the 60 page thing the other day?

SCO is basically saying "Here's what we have without recent copies of AIX. If we had recent copies, we could probably give you more."

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:Okay so is it over now?

[technomom]

The judge gave them plenty of time. She was very accomodating in the scheduling. SCO has no excuses here.

From the Dec. 5 transcript....thank you P.J. at groklaw.com!

Mr. Marriott, I would ask that you prepare the order in this matter and submit it to me no later than Wednesday of next week. Assuming that it is
an appropriate order, then your 30 days would begin to run, Mr. McBride, from that period of time. We will set a hearing, then, for approximately two weeks thereafter, so we are talking about the middle of January, all
right. Does anybody have a period of time, let's say, in the week of January 12th when you could not be present for a morning hearing?

MR. MARRIOTT: No, Your Honor.

THE COURT: All right. Does that give you sufficient time? I am holding you
to the 30 days, but if we get this order signed by Wednesday of next week, let's make it even the fourth week of January, which is after the 19th. Why don't we do it Friday, then, the 23rd at 10 o'clock, again, and then we will
address the remaining motions of SCO, all right.

MR. MCBRIDE: So Your Honor is not ruling on our motions at this point in
time; is that correct?

THE COURT: No. I'm not ruling on your motions, and that is inherent in my
order that further discovery be postponed.

MR. MCBRIDE: Very good, Your Honor.

THE COURT: We'll address them then.

MR. MCBRIDE: So and we'll, in this next -- the January hearing then we will
address the -- our pending motions as well?

THE COURT: Yes.

MR. MCBRIDE: Thank you, Your Honor.

THE COURT: All right. That's with the assumption that the discovery that
SCO is to complete has been completed, all right, and with the required
specificity. So what my intention is, then, is to then address the motions
of SCO.

MR. MCBRIDE: Just -- I'm just thinking procedurally whether we will have
time to actually brief and agree upon whether we -- the specificity is
required in advance of the hearing or whether we will be doing that at the
hearing.

THE COURT: No. I would think that should be in place prior to the hearing.
If you want a date later than that, that's fine. I don't care.

MR. MCBRIDE: Let's hold that date for the time being, and then if, for
whatever reason, it appears problematic, we'll notify the Court Does that
seem appropriate?

THE COURT: It does.

MR. MARRIOTT: That's fine by us, Your Honor.

THE COURT: If there's nothing further, counsel, we'll be in recess in this
matter.

(Whereupon, the hearing was concluded.)

Not to mention that the case was filed back in June and IBM filed the motion to compel discovery back in October. They've had more than 3 months and the best they could come up with is this?

I can't wait to hear Judge Wells' reaction.

JoAnn

Re:uh..

[vandan]

Dude.
That is funny.
Very funny.
I also long for mod points.

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..."

No, you're a retard.

[Anonymous Coward]

Yes, they have - read the letter.

No, they haven't - I did, thank you.

No, they haven't complied. And they admit that they haven't complied. To wit:

Yes, they have complied and, no, they didn't admit they did not. What they're saying is:

Here, with specificity, is everything we have. SCO can't be compelled to disclose something it doesn't have. SCO can't be penalized (that is, penalized in terms of breaking the order to compel discovery) because it has no more evidence to turn over.

SCO's evidence might not be good enough to win, but, it still complies with the order. SCO's excuse isn't an excuse for why they didn't comply, it's an excuse for why the evidence is so spartan in an attempt to pre-emptively fight off a dismiss motion. Expect one from IBM soon.

Quit being a rabid, frothing antiSCO retard and think.

where are the WMDs?

[Anonymous Coward]

Every day, this SCO thing looks more and more like the Irag invasion. They swear the WMDs are in the code, but nobody can find them.

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

Re:The thing that's most amazing to me..

[Anonymous Coward]

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."

Nope, the magistrate judge was quite unwilling to extend the 30 days. But the hearing where the discovery was to be discussed after it was produced, that date was flexible. That date is January 23rd. That is the date on which SCO and IBM get to argue before the magistrate judge whether the discovery material produced is adequate. IANAL

Chewbacca defense

[Anonymous Coward]

Ladies and gentlemen of the supposed jury, I have one final thing I want you to consider: this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. That does not make sense!

Why would a Wookiee -- an eight foot tall Wookiee -- want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense!

But more importantly, you have to ask yourself: what does that have to do with this case?

Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!

Look at me, I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca. Does that make sense? Ladies and gentlemen, I am not making any sense. None of this makes sense.

And so you have to remember, when you're in that jury room deliberating and conjugating the Emancipation Proclamation... does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense.

If Chewbacca lives on Endor, you must acquit! The defense rests.

Discovery Responses in a Nutshell

[Anonymous Coward]

Variable key:

A=Unix code
B=AIX & other IBM code
C=Linux code

SCO claims as to copyright/IP violations pre-responses to IBM discovery requests:

1) IBM took code from A, used it in B, and then passed that code to C and
2) IBM created derivative works of A, which consisted of B, which was then passed to C

SCO alleges in their responses that they cannot point to particular violations because they do not have B.

Analysis: this may be applicable to class 2) violations above, but is clearly nonsense concerning class 1) violations. If you allege A ended up in C through B, you do not need B: comparison of A and C would show the common code.

Conclusion: SCO's response essentially admits that there is no copying of UNIX in Linux. SCO's response limits SCO's claims to class 2) violations above, that IBM-created derivative works were incorporated into Linxu.

Problem for SCO: If side letter found to free IBM-created derivative works from adhesive clauses of original contract, 2) cannot form a cause of action.

Resulting question: How long can SCO put off IBM Motion for Summary Judgment?

Re:Seems thier case is going to sink or swim

[navak]

I (we) uniformly disagree on the theory that everything IBM added to AIX must not also be added to Linux.

Not true. If IBM had signed a non-compete agreement with SCO, IBM most likely won't be allowed to do that, even if IBM owns the code - IBM would still be allowed to use it in-house. They certainly didn't sign a non-compete agreement (or an NDA), but that means, you have to look to their contract to see if they are actually allowed to backport modification from AIX to Linux, and/or to have people working previously on AIX, contribute to Linux.

Device, filesystem drivers used with Linux may be considered derivative works, even if not shipped with the Linux distribution, and therefor subject to GPL.

But if someone who had signed an NDA contributed code to Linux, one judge may very well demand that Linus cease the distribution of Linux until that code is removed. Actually the judge not only may but really should decide that (in addition to the dommages paid by the NDA violator).

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.