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SCO Accuses IBM of Destruction of Evidence
Posted by
Zonk
on Fri Jul 21, 2006 10:39 AM
from the sky-is-falling dept.
from the sky-is-falling dept.
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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Hmmm (Score:3, Funny)
Re:Hmmm (Score:4, Interesting)
No, this is just more of SCO purposefully not understanding how software development works.
To do otherwise would be the exception, not the norm.
Parent
Why is this still going on?!? (Score:5, Insightful)
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.
Re:Why is this still going on?!? (Score:3, Insightful)
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
Re:Why is this still going on?!? (Score:3, Interesting)
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
Re:Why is this still going on?!? (Score:3, Insightful)
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
Riiiiight... (Score:5, Funny)
Oh. Good. Grief. (Score:5, Funny)
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.
Re:Oh. Good. Grief. (Score:3, Insightful)
Re:Oh. Good. Grief. (Score:3, Funny)
Re:Oh. Good. Grief. (Score:4, Funny)
Parent
As lawyers say. (Score:5, Insightful)
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."
Like the ravings of a crackhead on "Cops": (Score:3, Funny)
At least this is legal strategy intended for use with law enformcement personnel. May not work as well in a court:
1) "Deny deny deny"
2) "Delay delay delay"
3) "Lie lie lie"
Re:As lawyers say. (Score:4, Funny)
Parent
Does destroyed code matter? (Score:5, Insightful)
Re: Does destroyed code matter? (Score:4, Interesting)
Parent
Except... (Score:5, Interesting)
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)
Parent
Re:Except... (Score:5, Informative)
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.
Parent
Re:Except... (Score:5, Insightful)
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.
Parent
Darl's book "How to make big money fast" (Score:5, Funny)
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
SCO again and again. (Score:3)
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.
What happened? Did the stock drop? (Score:4, Funny)
Could be me, but I find it hilarious that SCO accuses another company of smoke-and-mirror tactics.
New company idea! (Score:3, Funny)
Wrong /. Icon! (Score:5, Funny)
SCO's Strategy (Score:3, Interesting)
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
It's actually all a cunning plan... (Score:5, Funny)
Re:It's actually all a cunning plan... (Score:4, Funny)
spent on a turnip.
KFG
Parent
The obvious statement (Score:5, Insightful)
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)
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.
Re:relevant excerpt (Score:4, Insightful)
Parent
Mod Parent Up - IBM was keeping itself honnest (Score:5, Insightful)
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.)
Parent
COPY, right? (Score:3, Insightful)
Shouldn't the copyright holder keep, I dunno, copies?
SCOX share price (Score:5, Interesting)
SCO Source Code Omission (Score:5, Funny)
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?
*Crickets*
Absence of evidence is not evidence of absence (Score:5, Funny)
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."
Re:Absence of evidence is not evidence of absence (Score:5, Funny)
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.
Parent
Your Daily Chutzpah (Score:4, Funny)
"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 developers...to 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.
Getting stupid (Score:5, Insightful)
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)
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...
Of the vague nebulous blob of M&C...
Because of IBM's unfair, unethical and illegal actions, SCO is unable to...
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)
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."
IBM doing the right thing... (Score:3, Insightful)
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.
The story so far... (Score:3, Funny)
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).
(later...)
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.
Daniel Lyons (Score:4, Insightful)
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.
Re:Anyone else... (Score:3, Interesting)
So, they don't have the code. But they claim they have depositions from IBM people that show the code existed. TFA says nothing about SCO bringing the depositions to court, but I assume that would be the next step, which would be interesting - if it actually took place. We'll have to wait and see, I guess. Most likely we'll start hearing "we lost the depositions" or something like that.
Re:Anyone else... (Score:5, Interesting)
Not sure if it means anything, but I thought it was interesting.
Parent
Re:Anyone else... (Score:5, Informative)
Parent
Re:This Brent O. Hatch is Sen Hatch's son (Score:4, Informative)
Parent
Re:Classic projection (Score:3, Informative)
In general, when providing a definition and example, you must use the word you have defined... in the example.
Re:SCO (Score:5, Insightful)
Parent