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Caldera Government IBM The Courts News

SCO Files Response To Demand For Evidence 498

The Welcome Rain writes "SCO has posted its notice of compliance with the court order of December 12, which required them to produce evidence. The document itself is brief, but refers to a sixty-page supplement which lists the offending lines, and asserts that it can find more when IBM produces some of the evidence demanded of them by SCO. Millions of lines on sixty pages? How silly."
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SCO Files Response To Demand For Evidence

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  • by numbski ( 515011 ) * <[numbski] [at] [hksilver.net]> on Tuesday January 13, 2004 @09:09PM (#7968677) Homepage Journal
    Translation:

    The general public still won't get to see the evidence.

    By putting all 'priveleged' information in an addendum....we won't get to see the infringing code. :\

    Go fig. Put up or shut up my arse.
  • Will be waiting. (Score:5, Interesting)

    by Anonymous Coward on Tuesday January 13, 2004 @09:12PM (#7968705)
    SCO has shown that when they say they have done something, the chances are good they haven't. I can't imagine they'd refuse the court's direct order in this case-- especially since the court case is on hold until they cough up. But I'll still be waiting to see whether
    • IBM is satisfied by SCO's response.
    • IBM says "you haven't answered our questions at all".
    • IBM is dancing in the aisles becuase SCO's evidence amounts to 60 pages of files taken from BSD and header files ruled as uncopyrightable in the BSD case.

  • by yeremein ( 678037 ) on Tuesday January 13, 2004 @09:12PM (#7968707)
    Keep in mind that the 60+ pages comprises SCO's entire response. There were ten interrogetories SCO was compelled to answer. "List all the infringing code" was just one of those.

    Besides, SCO hasn't shown anything credible in several tries so far. I'm betting on more of the same.

    Even still, there are two points of fallback:

    1. Novell contests ownership of SVR5 copyrights--SCO needs to beat Novell in court before it can succeed against an end user in a copyright infringement claim
    2. The BSDi settlement questions whether SVR5 can even be protected by copyright in the first place
  • Wait... (Score:3, Interesting)

    by Komi ( 89040 ) on Tuesday January 13, 2004 @09:13PM (#7968716) Homepage
    SCO repsonded fully to the demand for evidence, but they've also got more when IBM answers their questions. If there's more to show later, then how could they have responded fully?

    komi

  • SCO complied, sorta (Score:5, Interesting)

    by UnknowingFool ( 672806 ) on Tuesday January 13, 2004 @09:14PM (#7968733)
    According to SCO they complied, but if you read their notice, they also note an exception.
    The only exception to such production is the files of certain officers and directors for whom SCO could not obtain the requested materials during the holidays with sufficient time to review the documents.

    This means that they couldn't get all the documents because people were on vacation. Let's see: they got the court order December 5. I wonder how many developers were given a mandatory 6 month vacation on a deserted island to start December 6th?

  • by ebcdic ( 39948 ) on Tuesday January 13, 2004 @09:19PM (#7968783)
    There was no ruling in the BSD case. It was settled out of court. You might take the judges comment's as suggesting what another judge might decide, but they do not constitute a legal precedent.

  • by Burnon ( 19653 ) on Tuesday January 13, 2004 @09:20PM (#7968792)
    Yeah, and if that's not enough space, you can bzip2 the text and that'll probably do it, and get obfuscation out of it to boot (you know, like they did last time [lemis.com]).

  • by cyxs ( 242710 ) on Tuesday January 13, 2004 @09:22PM (#7968805)
    But they haven't yet complied with the order. They only provided part of the answers that IBM Requested and said that once they get IBM's code from AIX that they will be able to answer the reset of the questions.

    And if I remeber the judges order was that it wouldn't allow for SCO Motion to Compel till IBMs motions were carried out. Also wouldn't the judge have to give fair amount of time after IBM gets the information for them to go over it and then provide the information that SCO requested. Because IBM has been saying that without knowing what SCO is sueing them over they couldn't provide the data that SCO wanted.

  • by Progman3K ( 515744 ) on Tuesday January 13, 2004 @09:23PM (#7968816)
    It'll just be a case of the original developers stepping forward, like last time and it'll end, finally.
  • by shaitand ( 626655 ) on Tuesday January 13, 2004 @09:30PM (#7968864) Journal
    But I was under the impression that SCO was required to put ALL it's cards on the table AND THEN the judge would talk about whether or not IBM hadn't presented all the requested information.

    SCO's statement makes it clear they are saying this is a sample only and they will cough up a little more after IBM gives what they want. Isn't this liable to piss off a judge who explicitly ordered they present everything?
  • Re:hmmm (Score:5, Interesting)

    by WCMI92 ( 592436 ) on Tuesday January 13, 2004 @09:32PM (#7968884) Homepage
    " Yeah - isn't it interesting that SCO seems to basically be saying that "we're waiting on the defendant to prove our case for us"? I hope McBride and Co. have their graves dug already"

    Which they cannot do. You can't file a lawsuit to use it as a fishing expedition. It is the burden of the plantiff to prove their allegations. Considering that Linux source is available, I don't see why SCaldera needs ANYTHING from IBM to "prove" their "millions of lines" allegations.

    The court set the deadline and put SCaldera's discovery on hold UNTIL they showed IBM exactly what they are accused of doing. Seems to me they have not done so. The next hearing will be very interesting. At the very least, Darl and his other brother Darl will have a VERY pissed off judge on their hands...

    If they piss the judge off enough, they might have their case thrown out. The judge could even dismiss "with prejustice" meaning the same charges could not be made again. A dismissal would not affect IBM's countersuit.

    The judge also could allow the case to proceed, but bar SCO from introducing any additional evidence other than what they just provided... Discovery deadlines are just that... A deadline. The party so ordered MUST turn over what they are ordered to, and then some, if they want to be certain to get that evidence into the court during trial...

    If SCO had a case, they should have turned over exactly what they were ORDERED to turn over. But then, as most of us suspect, they DONT have a case, but want to use the spectre of one to get rich off a "pump n dump" while receiving revenue from Microsoft to encourage the FUD machine...
  • by rjamestaylor ( 117847 ) <rjamestaylor@gmail.com> on Tuesday January 13, 2004 @09:35PM (#7968905) Journal
    60x60 = 3600 lines. Single space.

    A far cry from millions (*raised pinky*).
  • by kko ( 472548 ) on Tuesday January 13, 2004 @09:38PM (#7968922)
    Check the post near the middle of the comments by jbardhan:

    ...but why would somebody have moved >100k shares yesterday afternoon around 4pm? Check here [marketwatch.com]. That's way out of line with their typical volume...

    Beautiful.
  • by kko ( 472548 ) on Tuesday January 13, 2004 @09:43PM (#7968960)
    Sorry, but I forgot to mention where the original post was...
    It's here [groklaw.net].
  • by fishbonez ( 177041 ) on Tuesday January 13, 2004 @09:45PM (#7968969)

    I don't think it's an accident that Novell released all it's correspondence with SCO this week. Novell is giving IBM a lot of ammunition in it's legal battle with SCO. In those correspondence, Novell is clearly trying to exercise its rights under its agreement with SCO and consistently sites the relevant passages in those agreements to back up its requests. SCO just dismisses every Novell request out of hand without reference to anything.

    Of particular interest is Novell's assertion that derivative works belong to IBM, SGI, etc. This claim of ownership of derivative works is SCO's core argument. Without ownership of derivative works, SCO only has rights to actual code and not the methods, processes, etc.

    I suspect Novell is hoping that IBM may be able to short circuit the entire process. If IBM can show that SCO is violating the agreement with Novell and that SCO's ownership is in dispute, SCO may not even have standing with the court to bring the lawsuit. In other words, SCO's suit could be dismissed until it has established clear ownership of the copyrights it claims IBM is violating.

    SCO would then have to file a lawsuit against Novell. In the interim, SCO's stock price would freefall to nothing and it would not have the money to continue its fight. Novell could probably reclaim all the UNIX rights it supposedly sold if SCO is forced out of business.

  • by DarkAce911 ( 245282 ) on Tuesday January 13, 2004 @09:46PM (#7968975)
    SCO got smacked around by the Judge in Dec and she is really going to be pissed on the 23rd with no discovery done. Novell has a letter that said SCO's lawyers were off over the Holidays. 60 of legalese is something that can be produced of lunch at most places. Remember, lawyers bill by the hour and you can never have too many docs. Someone on Groklaw.net said that each page must be worth 59 million dollars if SCO's wants 3 billion in damages.

    I hope the 23rd is an open hearing with a transcript, its going to be real funny.
  • Re:Wait... (Score:3, Interesting)

    by Mr2cents ( 323101 ) on Tuesday January 13, 2004 @09:58PM (#7969060)
    They can hardly pretend they didn't have enough time to put the list together, this has been going on for months now.. It seems this 'millions of lines'-claim is as reliable as the 'Iraq can launch a biological attach within 45 minutes'-claim.

    They must have a reason to pretend this however. Most likely they just want to slow down Linux development/acceptance to buy their good friends at microsoft some time. If such a scenario were true, you would expect them to stay fuzzy about details, take as much time as they can, draw as much media attention as possible, etc..
  • by mrsev ( 664367 ) <mrsev@spyma c . com> on Tuesday January 13, 2004 @09:59PM (#7969067)
    Yes but even worse they themselves admit that they are not going to answer INTERROGATORY No.11. They say Interrogatories 1-9, 12 and 13.

    Will the judge nail them for this?

  • Re:Wait... (Score:2, Interesting)

    by tilrman ( 234948 ) on Tuesday January 13, 2004 @10:00PM (#7969075) Homepage

    The court order had a little clause that said if SCO couldn't find all of the evidence, they had to document their efforts to obtain it. In the notice, SCO says that it couldn't obtain some things because of "the holidays."

    SCO is claiming that they can't present all of their evidence, in the lawsuit they filed, because they've been on vacation.

  • by dmaxwell ( 43234 ) on Tuesday January 13, 2004 @10:01PM (#7969086)
    Assuming that SCO own the copyrights to SysV (and not Novell) then they are AT&Ts successors in interest to the code. AT&T settled a dispute involving that code base. That settlement will travel with the code regardless of who owns it. The parent poster is correct, it isn't a legal precedent in general. It sure as hell is one as far as Novell and (maybe) SCO is concerned.
  • The point (Score:3, Interesting)

    by mcc ( 14761 ) <amcclure@purdue.edu> on Tuesday January 13, 2004 @10:18PM (#7969195) Homepage
    The "millions of lines" thing didn't refer to the millions of lines of code in Linux. It was a reference to the infamous Darl McBride quote in which he claimed there were "millions of lines" of SCO property in Linux.

    Statistics had nothing to do with it. The point of the slashblurb was that whatever is in those 60 pages, it is quite certainly far, far less material than SCO previously claimed-- to their stockholders no less-- they had proof of.

    They were trying to call SCO on previous deception, not attempt to belittle the size of code solely based on a comparison to the kernel at large.
  • by Anonymous Coward on Tuesday January 13, 2004 @10:18PM (#7969197)
    http://mozillaquest.com/Linux04/Dell-Linux_Story-0 1.html

    some please post this in Slash dot
  • Re:hmmm (Score:2, Interesting)

    by murphyslawyer ( 534449 ) on Tuesday January 13, 2004 @10:18PM (#7969199) Homepage
    IANAL, but it seems to me that the public may never see the actual code, since I believe SCO can file to have the evidence sealed to protect their IP from those who would steal it. All SCO has to do is say to the judge "Look, these Linux hippies have already stolen our IP - If we allowed them to see anything elss, they'd try to steal that too!"


    If SCO wins and manages to keep the court evidence sealed, things are bad for Linux in general. They can simply go around and demand liscense fees from anybody using Linux, without ever telling anyone exactly what it is they're paying for, and the Linux community would be more or less helpless to remove the offending code short of re-writing anything in the kernal whose origin can't be totally nailed down.


    Of course, this is fairly unlikely. But just because a million geeks keep shouting "Show us the code and we'll remove it!" doesn't mean we'll ever find out what it is. In fact, it is in SCO's best interest that nobody EVER see the code, and I'm sure they'll do what they can to keep it that way.

  • by MuParadigm ( 687680 ) <jgabriel66@yahoo.com> on Tuesday January 13, 2004 @10:19PM (#7969210) Homepage Journal

    Yes, this is liable to piss of the judge, especially considering that the judge has shown a small amount of pissed offedness with SCO already.

    I refer you to the following quotes from the transcript of the December 5, 2003 discovery hearing:

    THE COURT: ... the burden is on the plaintiff to prove the existence of the trade secrets assuming that that's part of it, all right, and that it is appropriate to postpone discovery in those circumstances until such time as the plaintiffs have acknowledged what the trade secrets may be, and otherwise this Court cannot determine, as the other party cannot determine, what is relevant as to future discovery.

    MR. MCBRIDE: Thank you. Yes. I will, Your Honor.

    THE COURT: None of us know.

    Or, how about this one:

    MR. MCBRIDE: Your Honor, ... we gave them the source code of Unixwork so it's in there.

    THE COURT: Didn't you give it to them in hundreds of thousands of pieces of
    paper, though, without specifically identifying it?

  • Millions of lines. (Score:3, Interesting)

    by eyeball ( 17206 ) on Tuesday January 13, 2004 @10:31PM (#7969358) Journal
    I don't think anyone pointed this out yet, but I'm sure you can fit millions of lines on 60 pages if they're mostly the same. For example:

    402,398 lines of: /************
    402,398 lines of: ************/
    921,765 lines of: /* open file */
    921,765 lines of: /* close file */

    etc...
  • by dacarr ( 562277 ) on Tuesday January 13, 2004 @11:13PM (#7969695) Homepage Journal
    On the other hand, she could simply demand more. If she was irate at SCO, though, it's a simple matter of "dismissed with prejudice".

    (It would probably be "without prejudice" though - the contention is that there's insufficient evidence to back the claim, and this is the first time the claim is brought up, albeit ad nauseam.)

  • by rjamestaylor ( 117847 ) <rjamestaylor@gmail.com> on Tuesday January 13, 2004 @11:22PM (#7969766) Journal
    I highly doubt that such would be (1) offered seriously or (2) accepted willingly as evidence. There would need to be an explanation of what in those lines infringes along with how the conclusion of infringement was ascertained. No respecting lawyer would allow such a terse presentation of their claims be submitted. There's not even a "wherefore the party of the first part" clause!

    Of course, I'm referring to actual court case with actual plaintiffs who think they actually have an actual case of actual infringement of actual property by an actual defendant, not a sham case used as a springboard for a publicity campaign with the goal of stock market manipulation.

  • by iabervon ( 1971 ) on Tuesday January 13, 2004 @11:29PM (#7969825) Homepage Journal
    The lesson to learn from this is that people can cause a whole lot of legal trouble even if they don't have any IP at all and you have clear records of every contribution and what else it might be related to. Trying to get even more information or to get more proof from coders of the legitimacy of their contributions is obviously useless in the face of something like SCO, since the defense will never get a chance or have a need to present any evidence of this sort.

    If a case is successfully defended or especially if it gets thrown out, it would be stupid to do anything differently. If you win the case, that means that what you've been doing is fine. If anything, changing your behavior in response to winning a case means that the precedent will be less useful if you get dragged into court again.
  • by Anonymous Coward on Tuesday January 13, 2004 @11:38PM (#7969912)
    If she was irate at SCO, though, it's a simple matter of "dismissed with prejudice".

    Well, Judge Wells is only the Magistrate, I don't think she can dismiss the case (but I'm not certain), but she can probably sanction SCO, dismiss claims, disallow evidence, and generally make it very uncomfortable for SCO. And of course, her judgements will have a lot of weight with the trial judge.
  • Re:hmmm (Score:3, Interesting)

    by MidnightBrewer ( 97195 ) on Wednesday January 14, 2004 @12:21AM (#7970248)
    Exactly right. It actually doesn't bar the person, it just makes it that much more difficult. It doesn't stop them from re-inventing the same case with a different slant and re-arranged details. For example, instead of A saying B owes him money, A can say that B took advantage of A by breaking some form of agreement (acting in good faith, etc.), and, by the way, still owes him the damn money.
  • Re:hmmm (Score:3, Interesting)

    by michael_cain ( 66650 ) on Wednesday January 14, 2004 @12:56AM (#7970504) Journal
    There's been lots of speculation that the whole case was a pump-and-dump stock exercise. If the dismissal is with prejudice, suggesting that SCO never really had a case, or at least that they seriously misrepresented the strength of their case in public filings, can that be part of an SEC investigation?
  • Re:supplement? (Score:3, Interesting)

    by afidel ( 530433 ) on Wednesday January 14, 2004 @01:01AM (#7970538)
    Actually didn't the judge already rule that discovery could be sealed from the public because it contained SCO trade secrets?

    Ah yes, Grocklaw [groklaw.net] has it and some explanations of how it might be fought. But until it is broken it is unlikely that we will get access to the actual evidence.
  • by Skapare ( 16644 ) on Wednesday January 14, 2004 @01:27AM (#7970673) Homepage

    SCO believes that their license with IBM entitles SCO to ownership of all code IBM develops and puts in products licensed to IBM by SCO. SCO believes some of that code IBM has put in AIX and/or Dynix/ptx was also put in Linux. So SCO's claim is "We don't know what code is ours, but we know IBM put it in Linux". Of course that can't account for any code IBM took from BSD and put in AIX and/or Dynix/ptx (which is in compliance with the BSD license), which SCO cannot possibly own, and which could also be in Linux, and might no longer even be in BSD. It also cannot account for any code IBM acquired from any other parties who may have approved putting it in AIX, Dynix/pts, or Linux.

  • by vladkrupin ( 44145 ) on Wednesday January 14, 2004 @04:06AM (#7971285) Homepage
    Therefore, you can say nothing at all about it, other than the fact that they span less than 3600 different files.

    Yeah, that's where specificity comes into play. I can say that you are infringing on my code in 3600 of your files, but that won't be very specfic. If you are showing line ranges, that's fine, but you still have to describe what exactly is wrong with those lines. That description is what should make the bulk of the document, not the line numbers themselves.
  • by RedLaggedTeut ( 216304 ) on Wednesday January 14, 2004 @05:08AM (#7971484) Homepage Journal
    The SEC is supposed to care about this stuff even if its small companies. I would guess that a lot of small companies are among the offenders of SEC rules.

    If you really wanted to you could probably force a court ruling by buying some SCO stock and then suing them when the stock drops if you really believe that SCO violated SEC rules in its SEC filings. But I guess as long as you don't blatantly lie, a court might find that your SEC filings were ok.
  • Re:hmmm (Score:4, Interesting)

    by The Fink ( 300855 ) <slashdot@diffidence.org> on Wednesday January 14, 2004 @06:07AM (#7971624) Homepage
    They can simply go around and demand liscense fees from anybody using Linux, without ever telling anyone exactly what it is they're paying for, and the Linux community would be more or less helpless to remove the offending code short of re-writing anything in the kernal whose origin can't be totally nailed down.

    In Australia, at least, that would land SCOG in very, very hot water (being Australian and by extension, not from the US, I don't know what the law provides for there). Claiming ownership -- and license fees -- on something you don't provably own is misrepresentation, and will see you up against the various state Offices of Fair Trading and/or the Australian Consumer and Competition Commission quicker than you can say "pay me." You can ask for donations and/or provide a service in return for payment, but you can't go around claiming rights to stuff for no material or immaterial benefit of any kind, much less threatening (veiled or otherwise) legal action if payment isn't forthcoming.

    I'm still waiting for SCO Australia to try it on here. They're welcome to use me as a guinea-pig; I'd be only too happy to send a copy of all correspondence to the ACCC.

  • by Grail ( 18233 ) on Wednesday January 14, 2004 @06:36AM (#7971713) Journal
    Sorry to pick on your specific post, this is directed at you in particular.

    "salt the earth" means to plough salt into the soil so that nothing will grow there. This was one form of "scorched earth" policy - it's too hard to keep the land once it's been taken, so just render it unusable. Talk to any farmer about what the effects of soil salinity are on crops and flocks.

    I sincerely hope that IBM would never "salt the earth" in any way shape or form.

    Perhaps a better phrase would have been, "IBM is going to stomp all over them and scatter their bloody remains to the corners of the Earth."

    Not that any SCO employee actually has blood - that would imply that they have souls, too.
  • by WCMI92 ( 592436 ) on Wednesday January 14, 2004 @08:52AM (#7972158) Homepage
    Circumstantial evidence it is, and it may not be enough to get a conviction of Darl and Co, but it IS enough to show probable cause to launch an investigation...

    IF SCaldera and it's executives from Darl on down are doing what we THINK they are doing (and so far evidence does not contradict it) they are guilty of some very serious crimes. If the SEC permits companies to get away with these things, then they prove that NOTHING was learned from Enron.

    SCO at the very least is misleading investors. It's SEC filings do NOT include ANY risk statements involving Redhat and IBM's counterclaims, and nothing concerning Novell's allegations involving their license agreement.

    Novell could go to court at any time and possibly get SCaldera's assets seized to pay them the 95% they were owed from the Darlgeld Microsoft and Sun paid!

    Not to mention, their current stock price is SOLEY the result of what is likely a frivilous lawsuit, and insiders have been excercising PENNY stock options and making TENS AND HUNDREDS OF THOUSANDS on the backs of people who BUY these shares.

    The fact that so many execs have options for SCO stock DRASTICALLY below the current price suggests to me that this whole scheme was premeditated...

  • by Anonymous Coward on Wednesday January 14, 2004 @01:11PM (#7974687)
    in order to bring suit in the first place, one has to have very good evidence that a crime took place, otherwise you don't have anything to risk your money on, and the court doesn't have a reason to waste their time.

    SCO made a positive claim - if they made a claim without knowing that it was true, they are potentially guilty of libel. In order to bring the case, they should have some evidence of violations - that would then justify the time and expense of looking at other pieces of code for evidence. Depositions aren't useful without the code they refer to ("I know IBM gave out code, but I don't remember what it is" or "We know IBM gave the code in (routine X) to someone else" isn't going to hold water). They need an airtight (or nearly so) case for the initial claims to justify looking for further infringement. SCO's say-so won't work, particularly after stretching the judge's patience with their actions.

    If SCO doesn't have conclusive proof of some violation, then they are in a gunfight with the Mob and carrying a baseball bat. An easy way to get killed.

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