Judge Orders SCO, IBM To Produce Disputed Code 587
An anonymous reader writes "A NewsForge story [part of OSDN, like Slashdot] says a court ruling by Judge Brooke C. Wells in the SCO Group vs. IBM intellectual property lawsuit amounting to 'show me the code' was released today in the form of a nine-page document [PDF link]. For a change, the SCO Group had no comment, because Judge Wells told it not to issue any. The judge said SCO is to provide and identify all specific lines of code IBM is alleged to have contributed to Linux from either AIX or Dynix, provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX or Dynix are alleged to be derived, and provide and identify all lines of code in Linux that it claims rights to."
Time for SCO to put up (Score:3, Insightful)
Re:Time for SCO to put up (Score:5, Insightful)
And what happens? (Score:3, Insightful)
Neither here nor there (Score:5, Insightful)
A fair ruling IMHO.
Groklaw too (Score:5, Insightful)
Basically, the court ruled SCO must put up within 45 days, while IBM must also give AIX (but not all versions) to SCO.
This is of course bad for SCO, who claims they need IBM to provide AIX before they can identify what is infringing. As IBM most likely won't be handing over AIX in the next 44 days or so, obviously SCO will not be able to comply.
It's a cute judgement, since it is fair to both parties while being devastating to SCO at the ame time.
It'll be interesting to see if they will play the 'we need the AIX code!' card again for the third hearing running.
Re:And what happens? (Score:5, Insightful)
"Uh, they're using our code. We want licensing fees. Oh, but we can't tell you what code that is.. we'd be revealing a secret.."
Re:Start Counting... (Score:5, Insightful)
Reminds me of the conviction of Shoko Asahara for the Sarin gassing of the Tokyo subway. Only eight years to finally sentence him to hang.
But wait!
He's appealed, and thus begins another eight to ten years of legal wrangling. Each time the government says they'll speed up the court system but very little actually changes.
Re:The Court: SCO made "good faith effort" to comp (Score:5, Insightful)
Yes it is. Because IBM has the same 45 days to produce this as SCO does to produce its evidence of infringement.
SCO has already stated in court that they cannot possibly comply with this without all the AIX code. Now, they are neither getting all the AIX code or the chance to use it to prove infringments, since IBM is hardly going to hand over the source at once.
(This is of course what the court intended by giving them a concurrent deadline. SCO must prove their case on their own hand, but IBM must still comply with discovery.)
Re:Time for SCO to put up (Score:5, Insightful)
Re:And what happens? (Score:5, Insightful)
Re:At last justice will be done (Score:5, Insightful)
End of story. End of SCO.
Re:Quick Question... (Score:3, Insightful)
-B
Re:At last justice will be done (Score:4, Insightful)
If you had 1 billion of damages that you could prove and document, comparing code you wouldn't do such a circus, you would present evidence and documents ASAP to receive the due amount. In fact, if they had a case IBM would have paid or bought them long ago.
Novell's Time? IANAL (Score:5, Insightful)
By suing Novell's customers (for which SCO has been providing an administrative service) SCO has:
1. Clearly defied a contractually valid direct order
2. Took actions and asserted rights not specified in the contract, and
3. Demonstrably harmed the product's (SysV licenses) future revenue stream.
Perhaps SCO thought the suit against Novell would somehow shield them from the reality that the only thing propping any of this up is their contract with Novell.
Here's to hoping for some "quick" justice.
Re:Will we get to see it? (Score:4, Insightful)
The Flatlander
Re:And what happens? (Score:5, Insightful)
Actually, the judge's order seems more favorable to SCO than you are suggesting. SCO was ordered to produce only initial code that it claims IBM missappropriated. IBM was ordered [among other things] to produce Dynix, AIX for the parties to argue their relevance and the court to decide. After that they have produced this evidence in 45 days, court will consider and decide whether additional Dynix and AIX stuff is relevant. After that, SCO will have a chance to amend its complaint to include Dynix, AIX, and additional stuff.
I am guessing that's exactly where SCO wants to go: first of all, discovery will take much longer; second, it wants to see Dynix and AIX so they can take every single piece of code that looks similar [in all 3 environments] and blame IBM.
IANAL, but as I understood at this point, SCO is required to produce only minimal evidence, but amend to it later on. Pay attention to the wording in the judge's order with regards to Dynix and AIX code:
This is to include all lines of code that SCO can identify at this time.
The judge also wasn't being harsh on SCO for not meeting deadline to produce code, saying they acted in good faith to produce evidence.
One good thing for IBM was that it does not have to produce any Linux contributions that are publicly available for SCO to look up.
Re:Groklaw too (Score:4, Insightful)
The judge has just let IBM control what code SCO gets to see. IBM would not offer to hand over 232 files containing their code without having fully vetted it first. I guarantee they did extensive computer analyses of the code before ever making the offer. They know what, if any of this code is in Linux, exactly how it got there and can verify copyright ownership. SCO can do all the fishing it wants but IBM already knows what is in there. It is highly unlikely that SCO will be allowed access to any more IBM code unless they have some truly compelling reason.
Re:We think we know what's happening? (Score:5, Insightful)
Re:Time for SCO to put up (Score:5, Insightful)
While the US legal system is far from perfect, it's more a case of being different, instead of defective. The difference is that the US system is more liberal than European courts. I know many will find it hard to believe with the political press it gets, but when it comes to normal cases that you never hear of, the US system is very liberal, giving both parties more chances than a more conservative system would allow. SCO is getting typical treatment in this case, at least in the US. No one is really argueing this. That they have lied, and possibly committed securities fraud is a seperate case, and not within the scope of the current lawsuit.
It may be frustrating, but the role of the court is to find justice, and the US tends to let bad guys go instead of convicting innocents, and giving litigants more leeway to state their case. This cuts both ways, and has good results more often than bad. This gives the small guy a better chance to fight the big guy. Ironically, in this instance, the big guy is the good guy, but this is usually not the case.
It's not perfect, but its not a bad system. It's bad people taking advantage of an open and liberal system. Eventually, SCO will be put down after they have been given every opportunity to state their case. But I would still rather see SCO get away with stuff like this, temporarily, than see innocent people/groups/corporations get rushed in/out of a courtroom and denied justice.
A review of our Patent and Copyright laws is more likely to prevent these types of cases in the future, since Copyright is the central issue in the case and the enforceability of the GPL.
Re:Finally (Score:2, Insightful)
Re:What will happen? (Score:5, Insightful)
You're describing trademark infringement. A better analogy would be if you were bottling a soda based on Coke's secret formula which you obtained illegally. You can't at that point just say "my bad" and stop - you're liable for damages for the period where you were infringing. You're also not going to be able to just come up with a new formula. You already know Coke's secrets - you'd have to either license the formula or hire people with no knowledge of Coke's IP to come up with the new formula for you. For Linux, this could mean that anybody who has worked on the kernel since 2.2 would no longer be able to contribute since they have gained the knowledge from seeing and studying SCO's IP. Anything they do from that point on might be considered tainted, whether or not the code is copied line-for-line. It might also mean discarding everything since 2.2 and starting over from the point where the court determined the infringement started.
Re:Time for SCO to put up (Score:3, Insightful)
What I find disturbing are the comments about how the system is so broken that SCO may get away with their 'evil scheme'. When the rule of law colapses, force is what's left, not random luck or something, and the idea that SCO has more force available than even AutoZone is simply silly.
Re:This looks like the judge is remaining totally. (Score:3, Insightful)
Re:Time for SCO to put up (Score:5, Insightful)
Oh I agree, but let us not forget the other people they threatened and intimidated, and from whom they extorted money. At some point the RICO act is going to be invoked, I suspect.
Given what's about to happen to Bernie Ebbers, this is probably a bad time to be senior management of a SCO or a Worldcom.
Re:And what happens? (Score:5, Insightful)
It definitely requires SCO to put everything on the table. But it also requires IBM to put everything on the table. Basically, both parties are required to supply complete copies of everything they've ever done relating to Unix. That's a lot. A lot a lot. SCO is required to supply the license that they released everything to anyone ever. IBM is required to provide source control logs for everything they've ever done relating to Unix. IBM is required to provide current contact information for 1000 current and past employees.
This is so, so far from over. The case just got ten times bigger. Of course, this is exactly where IBM will shine. They are made of lawyers. They'll be all over this discovery like flies on shit. Boies 'n' Co's discovery seems tiny in comparison, though, so I think they'll be able to deal with it too.
Assuming that SCO has *anything* to show off, this case is going to be around for a while.
(P.S. I am not a lawyer. Take everything I say a grain of salt.)
(P.P.S. I am drunk. Excuse hyperbole.)
I wish I had a million bucks. (Score:5, Insightful)
This is, of course, after they disobeyed the court's previous order to produce the code within 30 days. I'd almost be willing to bet a million bucks that when April 17 comes around, they'll motion for an extension, and repeat it upon termination of that extension, essentially putting off production of the evidence forever. (But I don't have a million bucks.)
Re:What will happen? (Score:3, Insightful)
No, that one's wrong too. Coke's formula is a trade secret. That's a different animal from trademark, or patent, or copyright.
Not that the distinction matters. This is a breach of contract case with potential outcomes involving intellectual property. It's not an intellectual property case.
"Non-public" linux contributions (Score:5, Insightful)
A post over on Groklaw also mentioned the possibility that IBM could, conceivably, have OFFERED a patch that was subsequently turned down for inclusion in the 'base' tree. Hence, it was a "contribution" (though not one that was accepted) and, possibly not appearing anywhere at the moment, would be "non-public".
The Groklaw post suggested that "intent to contribute" would have been a factor in the wildly flailing SCO claims. My take is that it IF such a thing ever occured then maybe, just maybe, IBM TRIED to put Secret SCO Source(tm) into Linux but failed (which obviously makes it a failure as a "Linux violates SCO Copyright" claim but might, during a full moon on a Tuesday during a solar eclipse, make a basis for a contract violation claim...)
Though this would also require that the patch have been submitted through "non-public" channels, too. Hmmm. Guess even this interpretation is a little weak...
Re:And what happens? (Score:3, Insightful)
KFG
Order #3 is just as good: (Score:5, Insightful)
Note that this sentence essentially assumes that SCO's "If A and B are linked into the same binary, then B is a derived work of A" theory is wrong. For this question to be even answerable, every chunk of code that SCO claims is a "derivative work" of System V is going to have to be a modified version of code that is already included in System V.
Somehow I don't think "We don't actually have any JFS, RCU, or NUMA code in System V, but under our theory we don't have to" is going to be a very good answer to this order, but it's basically the only answer SCO can give.
Superficially this order doesn't look like a big win for IBM, but since order 3 implies that Judge Wells doesn't believe SCO's ideas about "derivative works" and order 5 implies that Judge Wells does believe IBM's ideas about the GPL... well, that's about as good as the order could get without actually throwing out any of SCO's claims.
Re:Lines of code belonging to SCO (Score:3, Insightful)
What happens if they have proof? (Score:4, Insightful)
While it is certainly likely that SCO is just blowing smoke, I think we should consider the possibly that they are not wasting all this time/money for nothing. They knew when they started this nonsense that at one point they would have to prove their claims.
While we at
Re:At last justice will be done (Score:1, Insightful)
They must produce all the lines of Linux source code (with specificity) that they claim rights to and present the list of persons and the terms and licenses they distributed them under.
That's where the Kool-Aid is spiked. If SCO executes this order, IBM reads the court record in their countersuit -- SCO submitted evidence -- and then asks for summary judgement. Criminal penalties apply, since the infringement is clearly willful.
If SCO doesn't execute the order, then Judge Wells is free to find SCO in contempt and dismiss the charges with prejudice.
Re:Quick Question... (Score:5, Insightful)
Neither is "correct" if you ask me. SCO originally stood for the Santa Cruz Operation, and all employees and everyone who used the software called them "S.C.O.". Their main product was SCO Unix, a pretty advanced version of Unix at the time (and popular) - and it was pronounced "S.C.O. Unix", as the letters were still an abbreviation. SCO was a good company; for a while they had good technology, and they did not engage in the kinds of tactics the current SCO uses. They were similar to other Unix sellers.
Through the years the company has changed hands a number of times, and what is now "The SCO Group" has no real relation to the original Santa Cruz Operation. It is not HQ'd in Santa Cruz (as the original was), for one thing, so even though the current SCO owns that name they have said publicly that the correct pronunciation is now "Skow". As if it's a word. I think this is ridiculous. It's like Kramer on Seinfeld trying to use "Quone" in a game of Scrabble.
I still pronounce it S.C.O. and so does everyone else I know. We're old-school, I guess. Some may see this as a slap in the face at the real SCO, the original SCO, and I can understand that. But "Skow" just doesn't make any sense at all, and it's obvious that the current SCO is trying to profit off the name anyway (otherwise why even write it "SCO" and not "Sco" or "Skow"?), so to me calling them "S.C.O." sort of rubs their face in the fact that they're not who they say they are.
On the other hand, I've got a close relative who was an employee of the original Santa Cruz Operation - haven't bothered asking him what he thinks of me calling the current SCO by the same name. Kind of afraid to.
Re:Time for SCO to put up (Score:5, Insightful)
No, that isn't enough. That would prove their claim was baseless. That wouldn't prove they knew it. You have to prove intent, which is to say:
a. Their claim was baseless
b. They knew it
They could always argue that they were mistaken!!
Though Boies will probably be gone by then since he's paid in stocks and it's going to be worth peanuts when they will get there.
Personally.... (Score:2, Insightful)
Seems to me they've been quite quick with the last couple of stories, but nothing about this one yet.
Re:What will happen? (Score:3, Insightful)
Being that the source is so widely available on millions of cdroms (non desctructable media owned by many individuals and copyable) and harddrives all around the world, if any SCO ip were to be in the kernel, it would basically become public domain (or at least common knowledge
Re:Time for SCO to put up (Score:5, Insightful)
I don't really agree with you on unlimited punitive damages though. For that kind of punishment to be exacted on someone, the standard of proof should be "beyond a reasonable doubt". In civil cases, it goes by whoever the jury thinks proved their case better. It's 50-50, not innocent until proven guilty.
Punishment is best left to criminal courts.
Re:We think we know what's happening? (Score:3, Insightful)
That seems understating the importance of Linux for Novell Nowadays.
To me it looks like, Novell is betting the farm on Linux currently. And wisely so.
"/Dread"
Re:Quick Question... (Score:1, Insightful)
Grow up and get a life.
And stop worrying about how to fucking pronounce things. You can't even say 'tomato' or 'Linux' or a lot of things in the English language, so why bother?
Re:At last justice will be done (Score:3, Insightful)
As IBM said on Dec 5th: "either scox has the evidence, or they don't." Scox should have had this evidence a year ago, before they filed against IBM. Scox was given a direct court orders to produce this evidence in January and again in February.
Yet after all this time, and all of scox's obvious "hide the ball" stunts, and all of scox's idiotic execuses. Judge Wells is giving scox credit for making a "good faith effort" and is giving scox at least another 45 days to just produce evidence, and the judge is forcing ibm to turn over evidence to scox - in spite of the fact that it was scox who started the lawsuit.
The judge must be aware of scox's extortion racket, yet the judge is holding the door wide open for scox to continue their crimminal activities.
The Mormon Mafia must be powerful in Utah.
Re:Loser pays (Score:3, Insightful)
Would you say that being sued by Liberace for saying that he was gay was a slamdunk win for you?
On the criminal side, would you think that if you were trying an abusive ex-husband for the murder of his wife and a waiter with DNA evidence and a crappy alibi that you would have a slam dunk?
Guess what, Liberace won his suit and OJ walked.