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SCO Accuses IBM of Destruction of Evidence 266

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. "
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SCO Accuses IBM of Destruction of Evidence

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  • Hmmm (Score:3, Funny)

    by Anonymous Coward on Friday July 21, 2006 @11:43AM (#15757265)
    Did they hack my machine to get it removed from there as well?
    • Re:Hmmm (Score:4, Interesting)

      by tomhudson ( 43916 ) <> on Friday July 21, 2006 @12:11PM (#15757553) Journal

      No, this is just more of SCO purposefully not understanding how software development works.

      1. developer gets assigned to project
      2. developer checks out code from CVS
      3. developer mods code
      4. developer checks changes back to CVS
      5. repeat #2 until ...
      6. developer assigned to different project
      7. remove file from previous project from dev. box, so you can start fresh (since they're still on CVS if you need them)

      To do otherwise would be the exception, not the norm.

  • by Schezar ( 249629 ) on Friday July 21, 2006 @11:43AM (#15757273) Homepage Journal
    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 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...

      • As a former IBM employee, you should know better than to talk about internal politics and what not like that.

        As a former IBM employee, I personally don't give a fuck who cares what I say about internal politics and what not like that. I occasonally share anecdotes about my time with Tivoli (shortly after IBM purchased them) and as long as I'm not being malicious, who gives a shit? I'm not under any current NDA, and I don't intend to work directly for big blue any time in the future. I had enough of it w

        • 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 co
      • I am no longer an IBM employee, and am bound to no contracts with them. I am bound by NDA only against discussing information marked as confidential of which I became aware during my tenure. Anything I may find out now, or anything that was not confidential, or even anything that I have surmised based on non-confidential information, is fair game.

        My statement is based upon observations I've made of employees' attitudes, information I've discovered since I quit, and logical evaluations of the situation at
    • "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."

      Does IBM share it's legal strategies with it's sysadmins?

      • Does IBM share it's legal strategies with it's sysadmins?

        Sure, after all the Evil Overlord list says: "I will hire one hopelessly stupid and incompetent lieutenant, but make sure that he is full of misinformation when I send him to capture the hero."

        Now, while SCO certainly leaves a lot to be desired for their moral character, they do take on far greater odds than your average dragonslayer armed with a toothpick -1, so I guess they're close enough. Or would this particular lieutenant be here to misinf

  • We destroyed the evidence and now you cry
  • by Stephen H-B ( 771203 ) <sjholmesbrown@gm a i> on Friday July 21, 2006 @11:44AM (#15757279) Homepage
    Pot, I believe you know Kettle?
  • by Rinzai ( 694786 ) on Friday July 21, 2006 @11:44AM (#15757281) Journal
    Well, I guess we all knew it was just a matter of time before SCO intro'd the "dog ate my homework" excuse.

    Next, I suppose, aliens from Planet Zontar in Zeta Reticuli will have stolen those very same computers from which the Unix and Dynix code was deleted.

  • As lawyers say. (Score:5, Insightful)

    by gowen ( 141411 ) <> on Friday July 21, 2006 @11:45AM (#15757285) Homepage Journal
    "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."
  • One would think, that if the code is destroyed, it won't be in Linux, and therefore no copyrights infringed, no?
    • Doesn't anyone find it funny that they are saying IBM deleted it's code?

      Don't they have a copy?
    • 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 m
  • Except... (Score:5, Interesting)

    by laptop006 ( 37721 ) on Friday July 21, 2006 @11:46AM (#15757305) Homepage Journal
    Unless this work was done *perfectly* it would be really obvious to anyone going through the source tree history (which SCO has), and even then is easy to verify by compiling release trees and doing a binary diff against them (well, decompiling both then diffing might be better).

    SCO are flat out lying, whether just to the public, or to their lawyers as well. The only reason I think IBM are continuing with this is to get each and every claim SCO has specifically and individually struck down so when the house of cards finally does crumble they have no way to try it again.
    • Re:Except... (Score:5, Insightful)

      by MrDanielW ( 979610 ) <`danielw' `at' `'> on Friday July 21, 2006 @11:48AM (#15757328) Homepage
      IBM time traveled and destroyed the mountain of code they blathed on and on about. How else can you explain it?
    • Re:Except... (Score:5, Informative)

      by Zontar_Thing_From_Ve ( 949321 ) on Friday July 21, 2006 @11:57AM (#15757412)
      SCO are flat out lying, whether just to the public, or to their lawyers as well. The only reason I think IBM are continuing with this is to get each and every claim SCO has specifically and individually struck down so when the house of cards finally does crumble they have no way to try it again.

      Also, the longer this mess goes on, the more money it bleeds from SCO. Even the stock market is finally reluctantly starting to realize, years after Slashdotters, that SCO doesn't really have any ground to stand on. SCOX is currently valued at $2.51 a share, having lost about $1.50 or so in the past month. One source says that SCO is down to $18 million in cash. I think IBM is just trying to get them to run out of money by the time this is settled in IBM's favor so they won't be in a position to launch endless appeals of the verdict.
      • Re:Except... (Score:5, Insightful)

        by jackbird ( 721605 ) on Friday July 21, 2006 @12:13PM (#15757572)
        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.

        • 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.
  • by kimvette ( 919543 ) on Friday July 21, 2006 @11:49AM (#15757338) Homepage Journal
    1. Buy lots of SCO stock
    2. Falsely accuse IBM of giving Linux SCO code - code that SCO themselves released under the GPL in the form of Caldera Linux (later SCO OpenLinux)
    3. Dump some of your stock
    4. Receive practically every scrap of Linux and AIX documentation, source code, marketing literature, test reports, design docs, etc. that IBM ever produced
    5. Dump some SCO stock
    6. Realizing that you've been called on your bluff, accuse IBM of destroying alleged "evidence"
    7. Dump more SCO stock

    (months later, after IBM and Novell are eating SCO's remains)

    8. Have fun being Bubba's bitch in federal prison
    • No, no- step 8 is "Retire with $10 million in the bank." What, you think CEOs are legally accountable for their company's actions? That's the worst part about this trial- Darl McBride will walk away from it rich, and SCO- the company he should have been working for- will be pounded into bankruptcy.
      • No, I'm sure that both IBM and Novell will be able to prove just cause to pierce the corporate veil, based on libel, securities fraud (the SEC will be all over Darl for that BTW), criminal negligence, and breach of contract.

        And, if you think that CxOs are immune, may I direct you to enron? Ken Lay found himself in a mound of crap - lucky for him, his ticker gave out.
  • by truckaxle ( 883149 ) on Friday July 21, 2006 @11:49AM (#15757339) Homepage
    Ya know I wish there were some SCO shrills around to explain this.

    SCO claims that IBM toke their code from SCO Unix, even if it was thru some long forgotten version of Dynix or AIX, into contributed into Linux.

    But they have SCO Unix source and they have Linux source so simple show the connection and be done with it.
    • Oh, this one is easy. You've got their claims right, and this is just the next in a never-ending series of excuses SCO has been putting up on why they can't show the connection. (And why that is IBM's fault, and not theirs.)

      Basically, SCO is trying to blame the fact that they have no case on IBM. If they could get it to stick, IBM would be guilty of obstructing justice at least. If they can't, at least it takes the courts a few months to churn through their latest excuse, and that's a few months longer
  • by Opportunist ( 166417 ) on Friday July 21, 2006 @11:51AM (#15757358)
    Did the SCO shares lose value again or why the sudden outcry?

    Could be me, but I find it hilarious that SCO accuses another company of smoke-and-mirror tactics.
  • by MarkByers ( 770551 ) on Friday July 21, 2006 @11:51AM (#15757361) Homepage Journal
    I have a fantastic idea for a new company. I will sue Microsoft for allegedly having Linux code in Windows. Obviously this is going to cost a lot of money so please help by investing in my company. I don't actually have any evidence, but who cares I will just claim they destroyed it! This can't fail! Please donate investments to my Paypal account and if I win you will get a share of the settlement.
  • by c0l0 ( 826165 ) on Friday July 21, 2006 @11:53AM (#15757375) Homepage
    Is it just me missing the Monty-Pythonesque foot? :-(
  • SCO's Strategy (Score:3, Interesting)

    by paladinwannabe2 ( 889776 ) on Friday July 21, 2006 @11:54AM (#15757383)
    This is the strategy of SCO:
    Hi, I'm Darl! I get paid $300,000 dollars each year the lawsuit continues- without doing any work other than a couple press conferences!
    Basically, the people who run SCO get paid more the longer the litigation continues. It doesn't matter to them whether they win or lose- the longer the lawsuit continues the more
  • by miataninja ( 980534 ) on Friday July 21, 2006 @11:55AM (#15757387)
    Wouldn't surprise me if it eventually turns out that the lawfirm handling SCO's lawsuit are actually undercover Linux-zealots with a cunning plan who managed to convince SCO that they could actually win the case, then proceeded to produce a MASSIVE amount of billable man-hours which they from the start knew would eventually lead to SCO filing for bankruptcy. When the lawsuit is over, all proceeds from the lawfirm will be donated to promote Linux. Hmm, I'd actually like that!
  • by rewt66 ( 738525 ) on Friday July 21, 2006 @11:58AM (#15757422)
    "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...

  • relevant excerpt (Score:5, Informative)

    by avdp ( 22065 ) * on Friday July 21, 2006 @11:58AM (#15757425)
    Here is the relevant excerpt from SCO's legal filing:

    even after the Court ordered the source code to be produced, IBM failed to produce all versions of its AIX code, claiming that they cannot be located. Even more egregious was IBM's spoliation of evidence. Weeks after SCO filed its lawsuit, IBM directed "dozens" of its Linux developers within its LTC and at least ten of its Linux developers outside the LOC to delete the AIX and/or Dynix source code from their computers. (SCO Opp. Memo. (3/7/06) at 3.) One IBM Linux developer has admitted to destroying Dynix 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. (Id. at 3-4.)

    SCO has access to every version of AIX and Dynix released in recent and not so recent history and they can't identify any infringement in them. So now they're saying that the same code that were copied or cached on the developers' workstation must have had the smoking gun in it. That's a really really desperate argument. Clearly they're just trying hard to raise arguments - any arguments - that may lead to this devastating ruling to be reversed. I suppose I can't blame them lawyers for not leaving a stone unturned.
    • by icensnow ( 932196 ) on Friday July 21, 2006 @12:12PM (#15757559)
      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.
      • Either way, their argument is those copies of AIX/Dynix source code that were deleted off the developer's PCs might have helped them find the evidence they need. Nevermind they had access to the official code of every version released (other than a few ancient version of Dynix which even IBM doesn't have anymore) and they apparently can't produce any evidence from it.

        That's like saying that they have AIX and AIX in which they can't find any infringements. But they're missing AIX be
      • I guess I can almost see SCO's point.
        In some of that source code a Developer might have started to put some code into AIX that never made it to production. The then put the same code into Linux.
        Wow this is getting really fuzzy. I hope the judge tosses that out or else every scratch pad of every AIX developer will need to be dragged in to court.
        I can see it now. So did you start thinking about how to handle x when you where working on AIX?

      • by HighOrbit ( 631451 ) * on Friday July 21, 2006 @12:57PM (#15757989)
        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.)
  • COPY, right? (Score:3, Insightful)

    by potpie ( 706881 ) on Friday July 21, 2006 @11:58AM (#15757428) Journal
    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?
    • by Alsee ( 515537 )
      I've fallen a little out of touch with SCO's legal argument. Could someone remind me, is this "This is a copyright case" week, or is this "This is not a copyright case" week?

  • SCOX share price (Score:5, Interesting)

    by onkelonkel ( 560274 ) on Friday July 21, 2006 @11:59AM (#15757433)
    I note, with some amusement, that SCO shares, which have been hovering at the $4.50 mark for about 2 years, suddenly dropped to $2.50 about 10 days ago. Trading volumes are absolutely miniscule. I think we are seeing the end coming.
  • You'll just create new evidence.
    • A point a collegue made of mine:

      <Cyan> shouldn't SCO have access to the same "evidence" .. hence their claim to begin with?

      So true - SCO has been on a fishing trip from the start.

      this country seems to award civil liberties to corporations. The police can't randomly search your house -- does this mean that private citizens can?

      I think Joe Bob has my waffle iron under his bed - I don't have any documentable evidence, but I want him to box up and ship the contents of his master bedroom for my inspec

  • by digitaldc ( 879047 ) * on Friday July 21, 2006 @12:00PM (#15757447)
    First of all, I almost went blind and had trouble reading the article after seeing Steve Forbes' face pop up on my screen to tell me about how great he is.

    FTA: Hatch, SCO's attorney, says SCO learned about the destruction of code when it took depositions from IBM programmers. This is the first time SCO has made the allegation in public, though Hatch says the claim was part of a motion SCO filed in March 2006, which has remained sealed.
    Hatch says the allegation has become relevant now, because it helps explain why SCO could not meet demands to cite source code.

    IBM declined to comment, citing a policy of not discussing ongoing litigation.

    So, who here feels sorry for the SCO lawyers?

  • by Anonymous Coward on Friday July 21, 2006 @12:03PM (#15757478)
    Are they going to use the Boondocks "Rummi Gambit"? It's similar to the "Chewbacca Defense" from SouthPark. It goes something like this:

    SCO: "Judge we can't find any evidence because IBM detroyed it."
    IBM: "How could we destroy evidence when they haven't requested it or know what said evidence might be. Judge their case is totally without merit. They lack the evidence to proceed. We motion to dismiss."
    SCO: "The absence of evidence, is not the evidence of absence."
    IBM Lawyer: . "Judge IBM has provided all evidence they have requested. How can we provide items that are not known even to SCO. They are on a fishing expedition. We request that SCO make their evidence requests known. We shouldn't be made to provide items that are not identified and unknown. It appears that what SCO wants is unknown to even themselves."
    SCO: "There are known knowns, and there are known unknowns, but there are unknown unknowns. Things that we don't know that we don't know."
    IBM Lawyer: "Motion to dismiss your honor."
    Judge: "Motion granted. Case dismissed."
    • by hey! ( 33014 ) on Friday July 21, 2006 @01:13PM (#15758144) Homepage Journal
      You don't pay laywers the big bucks to argue like that. They should be able to keep the near corpse of this case running a few more years at least.

      IBM: "How could we destroy evidence when they haven't requested it or know what said evidence might be. Judge their case is totally without merit. They lack the evidence to proceed. We motion to dismiss."

      SCO: "The absence of evidence, is not the evidence of absence."

      Judge: "But you can't sue without evidence. That's what absence of evidence is."

      SCO: "Yes, but you can sue in the absence of evidence if you have evidence of evidence."

      Judge (frowning): "Run that by me again?"

      SCO: "Absence of evidence is prima facie evidence if there is evidence of evidence."

      Judge (frowning counting on his fingers): "But absence of evidence in the face of evidence of evidence is evidence that the evidence of evidence isn't errr... really evidence."

      SCO: "No, absence of evidence in the face of evidence of evidence is not evidence of absence but evidence of malfeasance"

      Judge (to IBM laywer): What do you say to that?

      IBM Layer: Oh, I agree.

      SCO(Trimumphantly): See! He admits it.

      Judge: Admits what?

      SCO: That they destroy the evidence of whihc the evidence of evidence was evidence of.

      IBM: I admit no such thing.

      Judge: What? You just said you agreed!

      IBM: I agreed that absences of evidence in the presence of evidende of evidence evidences malefeasnce.

      Judge: Isn't that the same thing?

      IBM: No, because as my learned colleage is no doubt aware, I have not stipulated whether the evidence of malfeasnce pertains the to absence of evidence, or the absence of evidence of evidence.

      Judge (working it out): Hey! What exactly is the evidence of evidence we've been talking about

      SCO (looking at his feet): mumble

      Judge: Pardon?

      SCO: I said, they destroyed that too.

      Judge (to IBM): What do you say to that.

      (IBM is a bit preoccupied and does not respond)

      Judge (to IBM): Excuse me, counsellor, but I asked you what you though of plaintiff's assertion that the absence of evidence of evidence is your fault?

      IBM: I beg your pardon your honor. I was measuring another fathom of rope for my learned colleague.
  • by DanTheLewis ( 742271 ) on Friday July 21, 2006 @12:04PM (#15757484) Homepage Journal
    Linux fans cheered the Wells ruling, viewing it as a sign that SCO's case is doomed. Hatch says they're celebrating too soon.

    "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."

    Of course, what Hatch is saying is like saying that SCO is fighting to keep the war-torn Linux world as one Union of the people, by the people, and for the people, by suing the pants off Linux developers, threatening to charge license fees to corporate users of Linux, accusing Linux developers of plagiarism and copyright violation and now obstruction of justice. They've got General Sherman in their back pocket just waiting to pillage his way through IBM's case. I think he works as a mathematician for MIT. Also, IBM owns slaves.

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

    Come on, I thought the copyright infringement claims were going to show that parts of System V were copied into Linux. The argument that it's illegal for IBM to put their own code from Dynix into Linux has always been barely there. I guess if this destruction really happened, IBM will call SCO's bluff and say that they didn't know it was illegal to destroy their own code, because their legal department couldn't anticipate the need to preserve AIX and Dynix to prove SCO's wacky legal theory.
    • No, SCO is claiming that parts of System V AND Dynix/AIX were copied into Linux. Since Dynix and AIX are derivative works of Unix, which they own the rights to the source code, they own the rights to Dynix and AIX via the Project Monterrey contract.

      First of all, SCO needs to prove that they IN FACT own the rights to the Unix source code(the Novell case), and then they need to prove the derivative works part of the contract with IBM. Finally, they need to prove that the only way the code ended up in Linux
    • Besides, if IBM developers erased code on their personal machines, what's the big deal? It's still in the version history, so no evidence was destroyed. It would take a CMVC admin to wipe the data from the version history. And it would be hard. Not only would she have to zap the offending version, but every subsequent version would have to be renumbered to hide the gap. There are probably other ramifications, like editing the embedded version code comments in the source file.

      And (at least according to IBM),
  • 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
  • Getting stupid (Score:5, Insightful)

    by SnarfQuest ( 469614 ) on Friday July 21, 2006 @12:10PM (#15757545)
    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.... (Score:5, Insightful)

    by Anonym0us Cow Herd ( 231084 ) on Friday July 21, 2006 @12:11PM (#15757551)
    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.
  • No spoon (Score:3, Funny)

    by Otter Escaping North ( 945051 ) <> on Friday July 21, 2006 @12:18PM (#15757607) Journal

    Child: "Don't try to make your case. That's impossible. Instead, try to realise the truth."

    SCO: "What truth?"

    Child: "There is no case."

    SCO: "There is no case?"

    Child: "Then you will see, that it is not your case that changes, but only your argument."

  • Well its more believeable :-)
  • Someone please correct me where I'm wrong:

    SCO accuses IBM of stealing code. SCO refuses to specify which code IBM stole. SCO says that IBM needs to declare which code it stole. SCO told to suck it up and declare what code was stolen. SCO does puppy-dog-eyes thing. For months. SCO says "some guy" at IBM knows about the code and it was deleted, but this was in sealed documents from before. GOTO 10.

    Am I following this?
  • by trawg ( 308495 ) on Friday July 21, 2006 @12:24PM (#15757655) Homepage 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.
  • So if X files suit against Y, is it up to Y to bring evidence that prove X's case against Y? I should certainly hope not. I thought the burden of proof fell on X, not Y.
  • IBM declined to comment, citing a policy of not discussing ongoing litigation

    Maybe SCO could learn a thing or two, hmm? Given the endless stream of prejudicial statements, including disclosing things that were originally filed under seal, IBM at this point could ask for a gag order, but I guess they figure that as long as SCO keeps digging, IBM may as well let them keep their shovel.

  • by mark-t ( 151149 ) <> on Friday July 21, 2006 @12:39PM (#15757826) Journal

    SCO: You're a thief!

    IBM: Huh? Are you on crack? What did I steal?

    SCO: You know what you stole... our Unix code, that you put into Linux! Now turn it back over so I can prove you stole it!

    IBM: Why do you think that?

    SCO: We know you stole code from us because *WE* invented Unix, and Linux was written by a bunch of hackers and wannabe's... And yet somehow in less than a decade, doubtless with *YOUR* help, Linux managed to progress from a barely usable hacker kernel to something that is entirely practical in many areas include schools, businesses, embedded systems, and many others. This wouldn't have been possible if we hadn't invented Unix first, so you must have stolen code from us! So, give us back what you you stole... we can prove that it was ours!

    IBM: Uhmmm... I don't know what you are talking about... Linux is open source, can't you show us from what's in the Linux source base?

    SCO: While we could find code that was taken from us in Linux, finding it in the open source codebase wouldn't prove that you stole it.

    IBM: Can you tell us where to look?

    SCO: No... because if we did that, you'd destroy the evidence before this got to court. Just turn over what you stole.

    IBM: If nobody here knows what code we allegedly stole how do we turn it over?

    SCO: It's not our fault if your company doesn't keep records of where it gets stuff from. Just hand it over.

    IBM: Like I said before, I don't know what you are talking about... can you show us if we give you everything we got?

    SCO: (eyes light up like kid in a candy store) Yes! Yes! That will do fine! Give us everything you have!

    IBM: Uh... okay. Here you go.

    (much later...)

    SCO: Hey! It's not here!

    IBM: What's not there?

    SCO: What you stole from us! You must be withholding something!

    IBM: Uhmmm... nope. Do you want to search our place to see if we missed anything?

    SCO: Yes, please. We'd like that very much.

    IBM: Okay... come in (rolls eyes).


    SCO: Okay, what did you do with it?

    IBM: Do with what?

    SCO: The code you stole!

    IBM: We didn't steal any code!

    SCO: Yes you did!

    IBM: Why do you still believe that when you've seen for yourself that we don't have it?

    SCO: Because you must have destroyed it when we first asked to see everything!

    IBM: Uhmmm... do you have any evidence to support that supposition?

    SCO: Ah hah! You *ARE* admitting to destroying evidence!

    IBM: For cryin' out loud man, get a grip! All we're saying is if you can't find any evidence for your claim, it really seems like a waste of effort to continue to pursue it. Although at this point I suppose it doesn't matter, because you know full well that we're going to sue your asses into the dust for this harrassment when the court finally rules that you are wrong.

  • The SCO Group has deleted plenty of damaging evidence from it's own websites ( * and * ) and excluded the Internet Archive's Wayback machine from mirroring old content [].

    From 09 June 2003 What evidence of origin,ownership,copyright + GPL [].

  • Look - pigs fly!!! (Score:2, Insightful)

    by madcow_bg ( 969477 )
    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
  • Pot? This is kettle. You're black.


    This is simply a last-ditch desparate effort of SCO to divert the attention from their pathetic selves and delay this tired and drawn-out leagal action.

    Some advice for SCO - Roll over and expose your soft underbelly in a show of submission while IBM humps the air over you.

    Your tactics are old and busted and everyone's tired of hearing about you.

    SCO? I hear your momma calling. You better run home now.
  • And I'm sure that SCO is prepared to present evidence to prove this latest claim that is every bit as compelling as all of the evidence to support all of their other claims they have made so far... Yawn...
  • but we are pretty sure that the deleted files proved our case.
  • "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."

    This goes back to the derivitive works issue.

    How can IBM delete something that SCO claims to own? If IBM wrote something and released it into Linux then that should be all you need -- deleted copies of something that was never released is moot. Deleted code created by IBM, if this indeed even occurred, wouldn't b
  • by Ranger ( 1783 )
    SCO is still around? They haven't been on my news radar since, uhm ... uuhhhhh .... I think .... uh since before the invasion of Iraq. SCO is a lot like the Bush administration. The Bushites looked for the WMD's and didn't find them. SCO is still looking for the infringing code and not finding it. At least SCO doesn't steal elections, invade countries on false pretexts, detain people without trial, and then torture detainees. No SCO is just a bunch of litiginous bastards. SCO should have hired Jack (abram)O
  • Daniel Lyons (Score:4, Insightful)

    by mcc ( 14761 ) <> on Friday July 21, 2006 @01:17PM (#15758179) Homepage
    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 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.

"My sense of purpose is gone! I have no idea who I AM!" "Oh, my God... You've.. You've turned him into a DEMOCRAT!" -- Doonesbury