SCO Accuses IBM of Destruction of Evidence

Udo Schmitz writes "According to an article at Forbes, SCO claims that IBM destroyed evidence by ordering programmers to delete copies of code that could have helped SCO prove its case. SCO's attorney Brent Hatch says that 'one IBM Linux developer has admitted to destroying source code and tests' and that they didn't mention this in public, because it only became relevant now, and that 'the claim was part of a motion SCO filed in March 2006, which has remained sealed'." From the article: "IBM declined to comment, citing a policy of not discussing ongoing litigation. In her sharply worded ruling, Wells criticized SCO's conduct in the case and seemed to indicate she was annoyed with the company. 'I don't know if that's true or not, but that's a question I'm asking myself,' Hatch says. Hatch concedes the Wells ruling represented a setback for SCO. But he says SCO still has a strong case. "

Why is this still going on?!?

[Schezar]

I worked at IBM for a number of years as a sysadmin and developer. I can say with certainty that IBM isn't at all concerned with this case and never has been. In fact, the majority of IBM's employees aren't even aware that the suit exists, let alone that it's ongoing.

SCO periodically makes enough noise to get some new press, but beyond that the case is effectively dead. They really have no chance of actually winning, and the whole endeavor seems to be an elaborate pump and dump scam for their stock.

As lawyers say.

[gowen]

"If the facts are on your side, bang on the facts.
  If the law is on your side, bang on the law.
  If neither the facts nor the law is on your side, bang on the table."

Does destroyed code matter?

[Dolda2000]

One would think, that if the code is destroyed, it won't be in Linux, and therefore no copyrights infringed, no?

Re:Except...

[MrDanielW]

IBM time traveled and destroyed the mountain of code they blathed on and on about. How else can you explain it?

The obvious statement

[rewt66]

"Nothing to see here. Move along."

I mean... one developer deleted some files? Oh, the horror! But, um... I'm a developer, and I've been known to do that from time to time, not to destroy evidence, but just to clean up my drive.

We should also note that Forbes doesn't exactly have a great track record with respect to objectivity and accuracy on this case.

All in all, I think I'll refrain from assuming IBM's guilt just yet...

COPY, right?

[potpie]

Toward the end of its objection, SCO claims IBM deleted copies of two versions of Unix, called Dynix and AIX, which could have helped SCO prove its case.

Shouldn't the copyright holder keep, I dunno, copies?

Fishy and ridiculous from the start...

[DarkFalconOfTheWestF]

If I understand this correctly, SCO is claiming their case is based on evidence they've never seen? Or do they mean they've actually seen it, but then it got destroyed so they can't present it as a part of the case? Oh wait.. wasn't this code neatly tucked on IBM developer workstations when all this began? So if SCO's case is based on it then they must've had access to it then! How is that possible? I'm too scared to even think about it.. Let alone mention it out loud when Darl might be around the corner ready to fire a subpoena at me!

Getting stupid

[SnarfQuest]

If the code was copied into Linux, then it would be in one of the Linux releases. Since these are available from multiple sources, the fact that IBM deleted their copies wouldn't matter.

If it was code that never reached Linux, then what's wrong? Are they complaining that IBM didn't copy code into Linux?

If true, IBM discovered some coders copying from the Unix source, and says "don't do that", and removes the offending code before it ever got out. It apparently never made it to Linux, or SCO would be able to show it in the Linux listings. Sounds like they are complaining that IBM didn't allow the Unix source to be copied into Linux. It just sounds like the IBM code police were doing their job,

So, SCO's case now seems to be: They could have copied Unix code into Linux, but they didn't. Anyway, we want money.

SCO recap....

[Anonym0us Cow Herd]

As I posted elsewhere earlier...

Now that I have finally managed to stop laughing, let me see if I understood this correctly.

SCO had such a strong case and so much evidence of "millions of lines of code", and "truckloads" of code from their "deep dive" proving that "the DNA of Linux is comming from UNIX", etc. that they were "ready for trial" in 2003 and they "don't need any discovery".

SCO needs all versions of AIX. Not only that, but they also need every unreleased internal iteration of code from CMVC, all programmer's notes, etc., at great expense.

SCO could not disclose specific code for M&C because they couldn't know what code was in the minds of IBM engineers when IBM disclosed the M&C.

IBM destroyed the evidence. So SCO cannot show what code, or M&C was copied. This, even though SCO has access to ALL of the code, and Linux code is publicly available.

No doubt, it must somehow be IBM's doing that SCO is unable to answer IBM's interrogatory asking for SCO to identify lines of Linux code that SCO claims to own rights in.

So in the end...

• Linux code is out in the open
• SCO cannot point to _anything_ specific in Linux
• Some vague nebulous blob of M&C was disclosed

Of the vague nebulous blob of M&C...

• It must be in Linux...somewhere (trust us on this)
• It must be IBM that disclosed it (because they have deep pockets)
• The disclosure (by whoever, however) must have been improper, somehow (otherwise how will we make a profit?)

Because of IBM's unfair, unethical and illegal actions, SCO is unable to...

• describe exactly what the M&C is
• point to where it is
• identify where it came from
• show that it has been disclosed
• show how (or who) disclosed it
• prove ownership of it

So in conclusion, ladies and gentlemen of this fine Utah jury, IBM is guilty. They did it. Trust us. Now do the right thing. Award Billions in damages to the plaintiff please.

Thank you.

Re:relevant excerpt

[icensnow]

Maybe we need to read what IBM might have done a little more carefully than SCO's lawyers have. The claim in that quote isn't that IBM got rid of big chunks of its codebase, but rather that it told its Linux programmers not to have or refer to the Unix source codes. I.e., if you're working on Linux, please don't look at the AIX version of what you're coding, and get it off your hard drive so you aren't tempted to look. That could have been a reasonable response to the original suit -- make sure that old Unix code doesn't leak into Linux accidentally (like the way George Harrison got the tune for My Sweet Lord). Also, even if all versions of AIX are under subpoena, it doesn't seem illegal to tell some of your employees to delete their personal reference copies, but that's a lawyer question.

Re:Except...

[jackbird]

There will be no settlement, and all avenues of appeal are being asphyxiated through a rigorous campaign of I-dotting and T-crossing.

SCO will stand for Smoking Crater Organization (formerly and once again Caldera), and perhaps SEC Comin' Over as well.

IBM has more or less bet the company on the viability of Linux, and their reputation for following contracts and respecting copyrights must remain ironclad for them to be credible as an organization enterprises can entrust with their most vital data.

SCO has no case, and there are many signs that the lawsuit is a suicide attack to buy time for the release of Vista, but IBM is making absolutely sure there will be no stain on Linux going forward, no matter how implausible.

Re:Why is this still going on?!?

[tomstdenis]

As a former IBM employee, you should know better than to talk about internal politics and what not like that. Heck, I work at IBM as a vendor and even I'm closely scrutinized for what I say [not that I really have anything substantive to say publically in any case].

That aside, most employees of most companies are not really fully aware of the legal ramblings they're involved in. Out of site out of mind...

Tom

IBM doing the right thing...

[trawg]

...by declining to comment - at least if the intro to the Forbes article is anything like the truth:

"It's kind of hard for us to do that," says Brent Hatch, an attorney with Hatch, James & Dodge in Salt Lake City, "because we don't have it. It was destroyed before it could be given to us."

SCO sued IBM in March 2003, claiming IBM took code from Unix, for which SCO holds some copyrights, and put it into Linux, which is distributed at no cost.

So they took code, put it into a freely available open source operating system - and then destroyed it?

I can't believe this story is being reported accurately, because if it is, SCO are just the most incredibley stupid asshats that ever filed a lawsuit - and given the frivolous lawsuits that we hear about filed in the US in The Rest of the World (nah, it's not really a country, but it might help some people to think of it that way), that is saying a lot.

Forbes reporting this might just be the typical, not-tech-savvy bad reporting that I've come to know and love from mainstream press, but places like this should know better and Just Fucking Ignore It so SCO can continue sliding off the face of the Earth. I don't want to hear any more about this case until some judge finally tells them to shut up and fuck off.

Re:Oh. Good. Grief.

[AviLazar]

The good news is, SCO has the burdeon of proof. They have to prove, other then "he said she said" that actual code that would have helped SCO win was destroyed.

Re:SCO

[TommydCat]

Since IBM purposefully destroyed evidence, SCO wants a ruling in their favor that it's ok to purposefully manufacture evidence. That would balance things out, right?

Re:Why is this still going on?!?

[tomstdenis]

You're not under an NDA means you're not privy to any NEW information. It doesn't mean you can all of a sudden disclose everything you learned previously. If you gave out the secret sauce for Tivoli you can rest assured IBM would be all over you for that.

Just saying it's not wise to speak on their behalf. Saying things like

"It was my personal impression that people didn't care"

is generally better than

"It was IBMs position that nobody cared"

You have to disclaim that you're not speaking on behalf of the company, even if you're an ex-employee. [Hint: I learned this lesson a couple of weeks into working for my current employer. Even if what you say sounds innocent they will still jump all over it.]

Tom

Look - pigs fly!!!

[madcow_bg]

The latest twist: Buried in a new filing from SCO (nyse: SCO - news - people ) is a claim that International Business Machines (nyse: IBM - news - people ) destroyed evidence by ordering its programmers to delete copies of software code that could have helped SCO prove its case.
Yeah... there are 2 options:
1. We never got the code, yet somehow we *KNOW* you're infringing our rights with it.
2. We had the code, but we lost it, so YOU must provide it.

SCO alleges this happened in 2003, yet the company has never talked about it in public before.

However, an attorney for SCO says the code deletion is one reason why the Lindon, Utah, software maker has been unable to comply with a demand that it produce examples of allegedly stolen code.

"It's kind of hard for us to do that," says Brent Hatch, an attorney with Hatch, James & Dodge in Salt Lake City, "because we don't have it. It was destroyed before it could be given to us." ...
Toward the end of its objection, SCO claims IBM deleted copies of two versions of Unix, called Dynix and AIX, which could have helped SCO prove its case.
Soooo ... it is the first, then. We never had the code, but you're baaaad. Veeery baaad. And because you can't find the code of one OS of maybe 1000 (with the different versions), so you're hiding something.

SCO claims the move was "egregious" and represents "spoliation of evidence," a potentially serious charge.

"Weeks after SCO filed its lawsuit, IBM directed 'dozens' of its Linux developers...to delete the AIX and/or Dynix source code from their computers," SCO's objection claims.
Claims, claims...

"One IBM Linux developer has admitted to destroying source code and tests, as well as pre-March 2003 drafts of source code he had written for Linux while referring to Dynix code on his computer," SCO says.
One guy working for IBM said, that he delete some code of some old obscure UNIX implementation. So what?

Hatch says the allegation has become relevant now, because it helps explain why SCO could not meet demands to cite source code ... and we couldn't think of anything else.

Hatch concedes the Wells ruling represented a setback for SCO. But he says SCO still has a strong case.
So, pigs do fly?

"You can't read big things into all these little wars," Hatch says. "It's like saying the North didn't win the Civil War just because a couple of battles were bad for us."
Couple of battles? Come on, every semi-intelligent being can see their case is just hot-air.

And most of all, the judge cannot rule this in their favor for one simple reason:
They have to proove that IBM did this for the purpose of winning the case. So what? Someone in your organisation deletes some code when you're under litigation. You're charged with "destruction of evidence". Just because you destroyed some evidence, doesn't make you guilty. The destruction have to be on purpose.
Unless there is sufficient proof of their guilt, their claim is just bullsh*t, or put otherwise, good-ol-FUD.

Mod Parent Up - IBM was keeping itself honnest

[HighOrbit]

That was exactly what I was thinking. IBM wanted to make sure its own house was clean, so it told its Linux developers not to have any versions of the UNIX source trees on their machines.

As far as deleting "draft" linux code, that might have been a case of playing it safe and making sure that nothing written by a developer with concurrent access to UNIX was contributed to their Linux projects (i.e. oh, you had access to UNIX source? Sorry we can't use your patches, please get rid of them and don't come back until UNIX is off your box.)

Daniel Lyons

[mcc]

Daniel Lyons, once again, is just trying desperately to find any imagined silver lining to distract the public (or at least whatever part of the public might be reading forbes.com) from how bad things are getting for SCO. SCO's been making this claim about destruction of code at random for awhile, before Lyons picked it out of their last huge filing and decided to make a big deal out of it. I don't seem to remember the judge ever being nearly as impressed with it as Lyons had. I also don't seem to remember there ever being any reason to believe that SCO's allegations about IBM destroying evidence-- much like the central allegations of their case, actually-- were backed up by anything except wishful thinking.

Throughout this case there have been two consistent trends. One, IBM gives everything the court asks of them and goes to enormous lengths and expense trying to produce materials that SCO sometimes doesn't even seem to have wound up using, while SCO drags their feet and refuses to provide either what IBM requests or what is explicitly ordered of them by the judge. And two, this whole time, SCO rants ceaselessly in the press, usually through mouthpieces like Daniel Lyons, that IBM is refusing to provide what is ordered, IBM is obstructing justice, IBM is dragging their feet. (IBM, for some reason having decided to try their case in the courts rather than the media, tends to remain silent.)

At this point Forbes may be the only thing that still qualifies as a media source where you can read the news about SCO and get any impression except that things are going disastrously, one-sidedly bad for SCO.

This is sad

[bunhed]

SCO's case is certainly a sorry last swing in a losing battle but to me, this whole debacle says more about what a pathetic situation the justice system is in than SCO's necrotic flailing. Anyone who has used SCO products for any period of time (back to Xenix for me), could see clearly they have been on their way out for many years before the 2003 death rattle. The sadder tale in this is that the justice system can now so easily be used more as a tool for capitalism then a tool for justice speaks of an animal so encumbered by it's own gross weight that it cannot even get away from itself. This is truly a pathetic story. Put this case in front of Judge Judy where it belongs and get it out of the real world. It'll be over in half and hour (minus time for commercials).

Re: Does destroyed code matter?

[Intron]

SCO's legal theory seems to be that IBM got a license to Unix which includes a prevision to keep it Super Sekret. Somehow, now there's Linux. The only way this could have happened is if IBM gradually transmutatified the Super Sekret Unix code through Dynix, through AIX, through REXX, through Hylafax and into Linux. They are looking for the missing link steps to show this in court, and LOOKIE! IBM DELETED AN UNRELEASED BETA COPY OF AIX! That's just like an admission of guilt, right there.

It all seemed more convincing at the client presentation.

I don't get it...

[JackHolloway]

So, in the classes I've taken on working on large software projects there was one thing hammered home. Don't scratch your nose without using version control.

With this in mind, what are they claiming? Are they saying that J. Random Coder wiped the offending dynix/aix code from his workstation? In that case, the code is still in the Version Control history. Or is SCO claiming that IBM ordered developers to remove revisions of the offending code from the Version Control history?

Assuming that IBM *wanted* to do so, is this even possible for a good Version Control tool? I'm no CVS/SVN guru, but i thought the tools were specifically built to make this not possible.

/me grabs occam's razor...

Bet the company? Hardly...

[el borak]

IBM has more or less bet the company on the viability of Linux

While it is indeed true that IBM has made a major commitment to Linux, if you truly think they've "bet the company" you have no clue as to the scope of IBM and how many markets they are in.

This Brent O. Hatch is Sen Hatch's son

[Secrity]

The Brent O. Hatch that is representing SCO in this lawsuit is the son of Senator Orrin Hatch, R-Utah. Another son of Senator Orrin Hatch, Scott D. Hatch, is a lobbyist with Walker Martin & Hatch.

Sen. Orrin Hatch (R-Utah) has suggested that people who download copyrighted materials from the Internet should have their computers automatically destroyed.