Linked by Eugenia Loli on Sat 6th Dec 2003 19:42 UTC, submitted by Tom Curtis
SCO, Caldera, Unixware IBM won a tactical victory Friday in a legal battle with SCO Group when a judge ordered SCO to show within 30 days the Linux software to which it believes it has rights and to point out where it believes IBM is infringing.
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Maybe now the madness will end
by Richard Tough on Sat 6th Dec 2003 19:52 UTC

Or they'll find some way to drag it out, but I would love nothing more than to see their case against IBM dismissed, and have IBM's countersue/Redhat wipe them off the face of the planet.

OMG
by sell_SCO_stocks on Sat 6th Dec 2003 19:53 UTC

Thank You! This has gone way too far.

v SUN
by Anonymous on Sat 6th Dec 2003 19:56 UTC
Whats going to happen to BSD
by sell_SCO_stocks on Sat 6th Dec 2003 20:00 UTC

Didnt SCO say they were planning on suing over infringing code in BSD?

SUN is a shareholder
by sam on Sat 6th Dec 2003 20:10 UTC

>>>Why did IBM subpoena SUN?

Because SUN holds a number of SCO stock options.

1 million sheets of paper
by Jason on Sat 6th Dec 2003 20:15 UTC

WTF! That is totally unreasonable. They damn well know that the appropriate form to deliver the code was in electronic format.

They want to stall and obsfucate the issue so much that SCO might have a glimmer of hope of passing their lies off as truth.

v Prediction
by Josh on Sat 6th Dec 2003 20:21 UTC
Looks bad for SCO...
by Archie Steel on Sat 6th Dec 2003 20:31 UTC

Head on over to Groklaw for notes and impressions from a couple of people who attended the hearing. It seems the judge has a pretty good grasp of the case and won't stand much of SCO's shenanigans.

Gee, I wonder where TopSpeed is today... :-)

v re: Gee, I wonder where TopSpeed is today... :-)
by Anonymous on Sat 6th Dec 2003 20:57 UTC
RE: Whats going to happen to BSD
by t3RRa on Sat 6th Dec 2003 21:23 UTC

Wasn't it from people's mouth? i mean.. it was what some linux zealots thought. SCO was considered sueing Novell about their acquisition of SUSE. BSD has already been to the court and has survived! :p

lol
by Err on Sat 6th Dec 2003 21:28 UTC

We should get one of these cases every year, it's fun reading.

About the only thing SCO is likely to prove in this case is that IBM's trained attack lawyers are as potent as ever.

FINALLY
by akumaX on Sat 6th Dec 2003 21:58 UTC

As funny as it is to watch SCO make baseless claim after claim as it is hearing Darl sound as funny as Bill Palmer of Microsoft trying to sound like he knows about open source, i've gotten tired of all of this.

Im glad SCO is FINALLY being put into a corner and being forced to produce some evidence. This has gone on too far SCO... put up or shut up.

SCO's motions denied
by Average Joe on Sat 6th Dec 2003 22:17 UTC

Does anyone else think this is a bad thing and reeks of curruption? How the hell is SCO supposed to find code that's been copied into Linux if IBM won't give it the AIX sources?

re: SCO's motions denied
by ryan on Sat 6th Dec 2003 22:25 UTC

Actually the real question you have to ask is why can't sco identify the code it claims ibm stole and put into linux already.

if they can't identify it then why are suing to being with.
That is the equivalent of suing someone with no proof.
Looks to me like sco wants a fishing troop through AIX.

Re: ryan
by Average Joe on Sat 6th Dec 2003 22:35 UTC

Well it is clear that IBM contributed Unix code to Linux (JFS, NUMA, RCU, SMP). It is also clear that they did this in breach of contract.

Also, since IBM GPL'd this code and added it to Linux, it means they're breaching the GPL by continuing to distribute AIX with this GPL'd code in it! Right now IBM is defending the GPL, but trust me, as soon as SCO mentions this fact to the judge, the judge will either order IBM to pay up damages to SCO, or open source AIX. And they won't choose the latter.

This better not be...
by John Blink on Sat 6th Dec 2003 22:35 UTC

...Darl helping his brother get a high profile case.

Gee, I wonder where TopSpeed is today...
by top speed on Sat 6th Dec 2003 22:44 UTC

Christmas Shopping, easily more important than fretting the fate of Linux which is a full time job for some of you.

This is nothing more than the opening volley in a five set match, and any of you celebrating are being way premature. What you seem to be ignoring in your glee is that during Friday's hearing SCO advised the court that the charges against IBM will soon be expanded to include specific copyright infractions. SCO CEO Darl McBride also penned an open letter where he mentions the Supreme Court of the United States which is obviously an idication they will appeal any decision against them all the way to the highest court in the land.

So buckle up people, it's going to be a long ride.

RE: Average Joe
by MTG on Sat 6th Dec 2003 22:55 UTC

Average Joe wrote: "Also, since IBM GPL'd this code and added it to Linux, it means they're breaching the GPL by continuing to distribute AIX with this GPL'd code in it!"

Since IBM holds the copyrights for the code, they can release it using as many licenses as they please. Just like MySQL or BerkeleyDB. Perhaps you should figure out copyright before you start spouting nonsense.

@top speed
by yutt on Sat 6th Dec 2003 23:13 UTC

Christmas Shopping, easily more important than fretting the fate of Linux which is a full time job for some of you.

Ignoring the fact this regards Linux-which-you-have-vowed-to-eternally-hate, if you are not upset that a company has falsely claim ownership over the hard work of thousands of individuals, and attempts to have that code released into public domain, all while receiving funding from the largest monopoly that has ever existed, you have a rather peculiar set of ethics.

@TopSpeed
by Archie Steel on Sat 6th Dec 2003 23:15 UTC

during Friday's hearing SCO advised the court that the charges against IBM will soon be expanded to include specific copyright infractions.

Great, so they'll finally be showing that code, right? I mean, you can't claim a copyright infraction if you can't say what copyrighted materials were infringed upon.

Today was a tactical victory for IBM: both of its motions were granted, while both of SCO's motions were pushed back until January. Now SCO has to do what it has so far refused to do (even though that would have helped their case): identify the alleged stolen case.

Specifically, here is a list of what SCO must provide IBM with:

http://www.groklaw.net/article.php?story=20031206151020872

SCO CEO Darl McBride also penned an open letter

Which was incidentally ripped to shreds by Lawrence Lessig on his blog:

http://www.lessig.org/blog/archives/001611.shtml#001611

Someone should really clue Darl into the fact that the GPL is built on copyright law. It is entirely compatible with copyrights, in fact it requires it. He really doesn't get it - or he gets it but he's engaged in fallacious propaganda. He lies, in other words - just like he lies when he says that RedHat is opposed to "copyrights and patents": RedHat is against software patents, but it is in favor of copyrights all the way. These statements are well-recorded and will be one day held against him.

where he mentions the Supreme Court of the United States which is obviously an idication they will appeal any decision against them all the way to the highest court in the land.

That doesn't mean they'll get their appeal. SCO's case is so shaky that there's actually little chance of that. Well, first things first: they have to show the code or else it won't even go to trial.

Average Joe

It is not at all clear that IBM put Unix code into Linux. For it to be clear, SCO would have had to identify the code - something which they still haven't done. There's been plenty of chest-pounding in the media, but nothing real.

Lots of things have come up over the past few weeks, such as the various contributions to Linux by Caldera (now known as SCO) employees:

http://www.groklaw.net/article.php?story=20031130210334574
http://www.groklaw.net/article.php?story=2003120208500971

SCO's toast.

Where was Boies?
by Archie Steel on Sat 6th Dec 2003 23:18 UTC

This is the big question that remains after yesterday. Why wasn't Boies there, why did they let Darl's brother present SCO's argument in front of the judge? According to witnesses, Kevin McBride did a pitiful job, making a confused and overlong speech.

Why didn't Boies feel that this wasn't important enough for him to attend?

Re: Re: Ryan (Below the Average Joe aka Strawman)
by Artem on Sat 6th Dec 2003 23:22 UTC

"Also, since IBM GPL'd this code and added it to Linux, it means they're breaching the GPL by continuing to distribute AIX with this GPL'd code in it!"

Now here's some news for you: the owner of the copyright is free to relicense his work under a different license. Go buy yourself a clue and cook a better argument. This one is really miserable, man...

@Average Joe
by Rayiner Hashem on Sat 6th Dec 2003 23:41 UTC

Please, just stop now, you're embarrasing yourself.

Well it is clear that IBM contributed Unix code to Linux (JFS, NUMA, RCU, SMP). It is also clear that they did this in breach of contract.
>>>>>>>>>>>>
Uh, how? JFS, NUMA, and RCU were IBM's own code! They wrote it, and they own the copyright to it. In the case of the Sequent stuff, they completely seperated the code from UNIX code and added it to Linux, while in the case of the JFS stuff, the code never touched UNIX code in the first place! The JFS version for Linux is derived from the new OS/2 JFS codebase, not the older AIX JFS codebase.

Also, since IBM GPL'd this code and added it to Linux, it means they're breaching the GPL by continuing to distribute AIX with this GPL'd code in it!
>>>>>>>>>
Um, not they are not. Its IBM's code, they can do what they want. If you are the owner of the copyright, it is perfectly legal to GPL some code, then distribute that code in a proprietory product. The only thing you have to watch out for is GPL'ed patches to the GPL'ed code. Either you have to have the patch owner assign the copyright to you (in which case you can integrate the patches into the proprietory version) or you effectively fork the GPL'ed and proprietory versions of the code. What you're saying doesn't even make sense! The GPL is based on copyright law. If you infringe the GPL, the only two people involved are the infringer and the copyright owner. In this case, they're both IBM. What's IBM going to do --- sue itself???

Re: Prediction & FINALLY
by Roberto J. Dohnert on Sat 6th Dec 2003 23:58 UTC

<< Darl is going to jail for inflating the price of SCO's stock, at which time he started to sell his. >>

Actually Darl hasnt sold any stock and as long as he doesnt sell any and goes down with the ship he wont be able to be prosecuted.

<< As funny as it is to watch SCO make baseless claim after claim as it is hearing Darl sound as funny as Bill Palmer of Microsoft trying to sound like he knows about open source, i've gotten tired of all of this.

Im glad SCO is FINALLY being put into a corner and being forced to produce some evidence. This has gone on too far SCO... put up or shut up. >>

Even if SCO shows IBM the code we will not see it. Already SCO has undoubtedly asked the courts to order IBM to keep it confidential because the FSF is not a legal entity and SCO is not required to show the Open Source community any code that is proprietary because then yes if IBM does it then SCO can sue them for that disclosure of proprietary code. Its like their NDA.

My opinions of this subject has changed some while yes I think SCO's claims are baseless and a ploy to pump up their stock, I am willing to agree that some IP infringement has occurred in the Open Source community and not just Linux. To the extent that most Linux developers are ex-UNIX developers. It would be foolish to think that absolutely all of Linuxes code is original works and that the developers have never used UNIX code or influenced by UNIX methods. I have gotten the oppurtunity to read a source license from AT&T that they used for UNIX and it is quite restrictive in those terms. To read it check SCO's exhibits.

v darl, keven & his other brother darl.....
by blowme on Sun 7th Dec 2003 00:04 UTC
Re: SCO's motions denied
by Roberto J. Dohnert on Sun 7th Dec 2003 00:05 UTC

<< Does anyone else think this is a bad thing and reeks of curruption? How the hell is SCO supposed to find code that's been copied into Linux if IBM won't give it the AIX sources? >>

Actually SCO's motions to Compel were not denied they were put on hold until January 23rd and the judge will rule on their motion to compel. The only thing that was put to rest was SCO's arguments that IBM should go first. Basically all SCO has to do is stick to the derivative works argument and they are still in the game and it will fall on IBM to provide arguments that their claims are a load of crap. SCO will get their motion to compel granted as well because what SCO is asking fo does not fall under unreasonable.As someone stated to me earlier tonight this is just the first stage of a long, long court battle. This was not an upset or anything to even get excited about.

More than a tactical victory for IBM...
by Anonymous on Sun 7th Dec 2003 00:12 UTC

SCO's entire legal strategy rested on the slender hope that they would be able to find a judge who could be dazed, confused and befuddled as easily the press. The judges ruling puts Darl & Co. on notice that they can't go on spreading FUD (and pumping thier stock) without being specific as to what they claim IBM misappropriated.

Re: Where was Boies?
by Roberto J. Dohnert on Sun 7th Dec 2003 00:39 UTC

This was a small proceedure and nothing anyone does can rarely screw this up. Kevin McBride is undoubtedly new and if he does go to work for Boies's law firm as some suspect then its probable that Boies gave him a no brainer just to test to see how he would hold up. And from what I understand he acted just as any other rookie would have acted. Its a type of test that Law Firms give new employees.

<< SCO's entire legal strategy rested on the slender hope that they would be able to find a judge who could be dazed, confused and befuddled as easily the press. The judges ruling puts Darl & Co. on notice that they can't go on spreading FUD (and pumping thier stock) without being specific as to what they claim IBM misappropriated. >>

This was nothing, its called a procedure and it was hardly anything work cheering over. SCO will just have to stick with their derivative works argument.

Re: SCO's motions denied
by Mephisto on Sun 7th Dec 2003 01:07 UTC

Does anyone else think this is a bad thing and reeks of curruption? How the hell is SCO supposed to find code that's been copied into Linux if IBM won't give it the AIX sources?

One thing to keep in mind is that is not quite how discovery works. Whem you accuse somebody of a crime, or in this case breach of contract, it is presumed that you have some evidence which led you to this conclusion. It is notthe job of discovery to give you the scope of your case, though it can help refine and prove your case.

Put another way IBM is asking SCO to show them what brought SCO to the conclusion that IBM was in breach of contract and/or whatever else SCO is accusing. As of this moment SCO has not shown any proof nor have they even deliniated with any specificity exactly what they are accusing IBM of. It is reasonable for IBM to expect to be told exactly what they are going to court about before they give SCO the pertinent discovery.

SCO is slowly going down
by peragrin on Sun 7th Dec 2003 02:24 UTC

While most of the comments are right about certian points. lets get it out in the open SCO must do one of the following, show IBM(not the Open source community) the code that they believe is under their derivative work. Problem with that is they don't acutally own the code in question, so it is IBm's to do with as they please. or SCO must dismiss the case.
If they dismiss the case, they then get sued, by IBM, red hat(both already started), the FSF and probally a few of the big names. There won't be enough left to sue anyone else. If they actually show the code to IBM in 30 days(no more the judge has already said so). Then IBM can step up and prove who owns what. They probally have copies to all the code BSD, since 1994, including all the SCO released under the BSD. a then comparison will turn up the whole truth. is their unix source code in the linux kernel, possible.
By declaring all gpl software around the world by thousands of devolpers, who never used any unix software public domain SCO shows that they have no respect for any copyright other than their own. An American judge can only make the GPL void in the USA, and return the copyright to the devolpers who wrote it. That leaves only the Linux Kernel in dispute, and it can be shown were 90% of that came from with out SCO being able to stop it, leaving 10% for the courts to decide, which is only around 500,000 lines of code maybe. No matter what if SCO wins both the kernel and SCO lose, if IBM wins SCO is gone, and the next matter is who buys up the remains.
now why did I say if SCO wins it still loses, you see Unixware's greatest features are GPL software written in other countries. SCO has to repeat their copyright claims in every country in the world, if they are right it might work. Since when have they spoken 100% truth. only IBM has done that(though they haven't said much of anything)

Tactical!
by X on Sun 7th Dec 2003 03:18 UTC

Tactical victory? Wow! Somehow the word "tactical" reminds me of captain Janeway and her tactical maneuvers. Now, what IBM needs to do is fire photon torpedoes at the Romulan SCO warships.

@Roberto
by Archie Steel on Sun 7th Dec 2003 03:42 UTC

I disagree that this is "nothing worth cheering over." While it is true that it's a procedure, it is nonetheless the first hearings in the case - and more to the point, it does force SCO to reveal what the allegedly stolen code is. So far SCO has resisted this tooth and nail - while in reality it would be advantageous to them to show that code (imagine how their stock would skyrocket!).

I also disagree that, because this is a procedure, Boies didn't need to be there. There is both a symbolic and a tactical value to his presence. Symbolic, because of who he is and tactical, because it would have helped in gauge the judge as well as the opposing team for himself.

In any case, this is a positive development. Of course we're still a long ways from victory (unless SCO cannot produce the infringed source code).

Question?
by Annon on Sun 7th Dec 2003 04:09 UTC

If SCO is able to produce that nasty infringing code -- wouldn't that simply allow for those incline to go ahead and write replacement code that has nothing to do with SCO and their IP?

Also, how much trouble will it be to replace the code once it is out in the open?

Also, isn't this what the Linux community waiting for, so that if indeed there is infringing code, they can get busy, write, replacement, and move on without the worry of SCO and their IP?

Also, if they show the code, and it is possible to replace it -- wouldn't that be cause to celebrate?

Now, if the code can be replace -- wouldn't it be safe to say that this business between SCO and IBM is no longer a concern to the Linux community?

Just wondering.

Something to cheer about
by Incognito on Sun 7th Dec 2003 04:18 UTC

While the SCO shills here would like to say this is just the opening volley of a long battle (and yes we know this will continue for some time) this really is a great step forward for IBM. SCO has claimed many times in the media that they deep dived with MIT experts and that they have proof of millions of lines of code. So why have they been so reluctant to specify in court where the violations are? There response in court is that they don't know and they need the AIX code first so they can find if IBM donated code or not. Huh? First they say they have damming evidence and then they claim they don't have the proof.

SCO is in deep trouble even if they can prove that any IBM code was donated improperly. There is a growing body of evidence that SCO employees and their managers knew full well what code was being contributed to Linux. They comment on it on mailing lists and submitted patches for it. They even supported the SMP developement that they now dispute. They also advertised SMP, JFS and NUMA as features of their Linux distro all while distributing the whole product under GPL. Darth McBride is fully aware of these events and that is why he is attacking the GPL.

Darls open rant against the GPL was vague where it was not ludicrous. GPL is all about copyright. Read the quote from the definitions section of the copyright that Linus pointed out:
The term ''financial gain'' includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.
GPL is all about receipt of other copyrighted works. Thats right Darl, the GPL. It's the American way!

You just watch
by Osten QUit on Sun 7th Dec 2003 04:49 UTC

...when SCO finally presents its code to IBM's lawyers electronically, it'll be a scanned PDF.

Re: @Roberto
by Roberto J. Dohnert on Sun 7th Dec 2003 05:16 UTC

<< I disagree that this is "nothing worth cheering over." While it is true that it's a procedure, it is nonetheless the first hearings in the case - and more to the point, it does force SCO to reveal what the allegedly stolen code is. So far SCO has resisted this tooth and nail - while in reality it would be advantageous to them to show that code (imagine how their stock would skyrocket!). >>

Their stock would not have skyrocketed it would have gone up just like it has. SCO is not required to share code with anyone but IBM which they will eventually. The Open Source community is no one, we are of no importance, SCO did not file the lawsuit against us. I think somewhre down the line, between opinion papers and ramblings of supposed "UNIX historians" we lost sight of that fact. What I find funny is that when SCO filed their subpoenas everyone said SCO was fishing, yet IBM has filed more subpoenas than anyone and people cheer them. Playing the devils advocate, what if SCO did show IBM code and now IBM is on the fishing trip, trying to find a memo, letter or anything telling SCO, from SUN and or Microsft, to kill Linux in order to take the sights off of them and confuse the issue? No one can.

My Prediction is that SCO will stick with the derivative acts argument.

<< I also disagree that, because this is a procedure, Boies didn't need to be there. There is both a symbolic and a tactical value to his presence. Symbolic, because of who he is and tactical, because it would have helped in gauge the judge as well as the opposing team for himself. >>

After speaking to our lawyer at work about this, we have our own inhouse law, he said it did not strike him any relevance for boies to be there or not to be there and if the role was his, he said he wouldnt have been there either. But maybe its a lawyer thing. It would not have helped ENGAGE the judge as well as the opposing team because this was a meaningless procedure. Boieses team was there, expect it to come out that either kevin McBride is either employed by his firm or contracted to it. I mean I have had my own personal lawyer send someone else from his firm in some of the few times I have been to court.

<< In any case, this is a positive development. Of course we're still a long ways from victory (unless SCO cannot produce the infringed source code). >>

I dont see it as positive, I think there is a whole lot of cheering over something very meaningless and very procedural to settle a childs game of " You go first ". I will cheer when either IBM wins or the Judge tells SCO to get out of the courtroom and settle or dismisses the case. Im stuck in this position for another 19 months. Just like the Microsoft funding SCO. I disagree with that and I do not and never have believed Microsoft is funding them, it is nothing more than comspiracy theory ramblings of figures in the Open Source community that Microsoft is funding SCO.

@Roberto
by Jud on Sun 7th Dec 2003 05:20 UTC

Whew, where to begin?

First, re disclosure of proprietary code: If it's in the kernel it's already been disclosed, and you can't destroy confidentiality that was already lost.

Second: a small procedure that can't be screwed up? If it was so small, then why did SCO waste the court's time with its objections rather than simply turning over the material IBM requested? Judges *do not like* having their time wasted - take it from someone who was a law clerk to a Federal judge. Actually, you are correct in one sense - any lawyer would have been hard pressed to make SCO's case that IBM had to respond regarding its alleged misconduct before SCO told IBM and the judge just what that alleged misconduct was, so why not send Darl's bro in to take the hit for this sure loser?

"It's a type of test that law firms give new employees." Umm, sure, a law firm is always eager to have judges realize that the firm has so little regard for the judge that they send bad and inexperienced lawyers to the judge's courtroom to screw things up and waste his time as a sort of test. In turn, having federal judges hate you is obviously a great way to ensure that lots of clients will trust your firm with their multimillion-dollar cases, and that your firm will grow and prosper.... IOW, Roberto, no law firm would do such a thing on purpose - it would be financial suicide for the firm. Law firms spend as much time as they can getting judges - especially federal judges, who are appointed for life - to *like* them.

@Roberto
by Archie Steel on Sun 7th Dec 2003 06:12 UTC

Their stock would not have skyrocketed it would have gone up just like it has.

I don't know about this. It's been going up without any solid proof, I imagine that proving the stolen code exists would have an even stronger effect on their stock.

It'll be interesting to see the stock on Monday. Even though the hearings on the motions to compel discovery are procedural event, and the matter is far from resolved, with stock markets it is perception that matters, not reality. There could very well be a drop on monday.

SCO is not required to share code with anyone but IBM which they will eventually.

Of course, they won't share it with the general public, but they will have to share it with IBM within 30 days.

It would not have helped ENGAGE the judge as well as the opposing team because this was a meaningless procedure.

Again, I disagree that it is a meaningless procedure. SCO was trying to avoid specifying the code during discovery, which is really at the crux of the case, so IBM filed motions to compel discovery, and SCO tried a dilatory tactic by filing its own motions to compel discovery - while they are already supposed to know what the code is (why, with MIT mathematicians helping them out...) For all practical purposes, the judge dismissed SCO's own motion to compel (pushing them back to January, after SCO will have had to comply, and therefore defusing the dilatory measure).

SCO tried to beat around the bush and wriggle out of discovery, and the judge called them back to order. This isn't meaningless.

@Anon
by Rayiner Hashem on Sun 7th Dec 2003 06:15 UTC

But that's not what SCO is going for. They want to play the card that if there is infringing code in the kernel, the whole kernel now belongs to SCO, even if they remove the infringing code. That's just not how copyright law works. Infringements happen all the time. GPL'ed code has been copied into commercial software many times. In each case, the FSF has mediated with the company to allow them to either GPL their software, or remove the offending code.

P.S.
by Archie Steel on Sun 7th Dec 2003 06:16 UTC

I disagree with that and I do not and never have believed Microsoft is funding them, it is nothing more than comspiracy theory ramblings of figures in the Open Source community that Microsoft is funding SCO.

Well, MS may or may not be funding SCO, right now there isn't any proof either way (though there are some connections between Baystar Capital and MS, apparently). One thing is certain, though: MS profits from the uncertainty propagated by the trial. I wouldn't be surprised if MS was helping SCO out, but until there's more proof it will remain a theory. It's important to keep an open mind about this, though: sometimes, conspiracy theories are true!

@archie_steel
by Roberto J. Dohnert on Sun 7th Dec 2003 07:00 UTC

Microsoft is already profiting, 85 percent say they arent worried about SCO, what about the other 15 %? They have stocked up on MS software.

Point of Interest
by digitaleon on Sun 7th Dec 2003 07:14 UTC

All along, I've been puzzled as to why SCO has handled their legal affairs in such an unprofessional manner.

The explanations of stock pumping or competitive misdirection have been offered previously, and have some credibility.

However, it may turn out that SCO is serious and genuinely believes that it has lost revenue from IBM's actions.

In that case, SCO could be concerned that there is a conspiracy behind the release of the code, that IBM got it out into the open-source world through third-party developers not associated with IBM. Together with IBM's own 'legitimate' efforts, this would mean that free software solutions would be enterprise-ready for IBM to on-sell with their own equipment, support and consulting services.

It may turn out, in fact, that SCO's strategy has been to bluster and threaten while watching from the sidelines to see if the infringing code allegedly present in current products suddenly disappeared and was replaced. CVS check-in logs and/or change announcements would be the evidence to confirm or refute this suspicion, except that they would not answer the question of whether or not IBM was involved.

I'm sure I'll draw howls of "It's impossible!" for this, but I remember that those exact same words were used to describe supersonic travel and the Apollo 11 mission. It certainly is possible, and deserves some consideration.

Re: @Roberto
by Roberto J. Dohnert on Sun 7th Dec 2003 07:38 UTC

<< First, re disclosure of proprietary code: If it's in the kernel it's already been disclosed, and you can't destroy confidentiality that was already lost. >>

Ahh but you can, I dont know what the code is, neither do you. SCO does and when they disclose, if they havent already to IBM, IBM will know, but myself and you will still be in the dark.

<< Second: a small procedure that can't be screwed up? If it was so small, then why did SCO waste the court's time with its objections rather than simply turning over the material IBM requested? Judges *do not like* having their time wasted - take it from someone who was a law clerk to a Federal judge. Actually, you are correct in one sense - any lawyer would have been hard pressed to make SCO's case that IBM had to respond regarding its alleged misconduct before SCO told IBM and the judge just what that alleged misconduct was, so why not send Darl's bro in to take the hit for this sure loser? >>

To see if it could be done, they gambled and they lost. IBM will lose in January when the judge orders them to disclose to SCO. Neither company is being front and center with either of its claims IMO or its dicoveries. IBM claims no one in IBM ever had any communications with Linus Torvalds? Yeah right, why do you think SCO subpoenad Torvalds to provide information? IBM is witholding as much as SCO is, if you want to play that game why didnt IBM go ahead and disclose to SCO so SCO would disclose with them? Its a rat race and whoever reaches the end of the maze first wins. If you think IBM is being totally 100% honest think again, every huge firm has skeletons in their closet and something to hide. This hearing yesterday was just as much IBM's fault as SCO's and the Judge was not looking at IBM that friendly either.

<< "It's a type of test that law firms give new employees." Umm, sure, a law firm is always eager to have judges realize that the firm has so little regard for the judge that they send bad and inexperienced lawyers to the judge's courtroom to screw things up and waste his time as a sort of test. >>

Do you think every lawyer wins every case or motion? If you do wake up. SCO probably thought they had a good argument. Kevin McBride actually from what I understand actually did a pretty good job for a green lawyer, the only people I have heard say he was pathetic was the Open Source community, surprise, He didnt screw things up, wasted a little more time then what he should have but he didnt screw things up. I just cant wait to read the transcript. Have you ever had Kevin McBride represent you? If not, how can you tell he is a bad lawyer, just because he has different views from you and me doesnt mean he is not a competant lawyer.

<< In turn, having federal judges hate you is obviously a great way to ensure that lots of clients will trust your firm with their multimillion-dollar cases, and that your firm will grow and prosper >>

As I stated before tell that to IBM as well. Boies firm is a well known firm and Im sure they will do just fine.

<< IOW, Roberto, no law firm would do such a thing on purpose - it would be financial suicide for the firm. Law firms spend as much time as they can getting judges - especially federal judges, who are appointed for life - to *like* them.>>

Yeah they would. Financial suicide for the firm? When boies's law firm goes bankrupt I may agree with you then. Im sure IBM has enough money and has probably spent enough money to make anybody "like them" as has SCO.

Re: @archie steel
by Roberto J. Dohnert on Sun 7th Dec 2003 07:44 UTC

" Well, MS may or may not be funding SCO, right now there isn't any proof either way (though there are some connections between Baystar Capital and MS, apparently). One thing is certain, though: MS profits from the uncertainty propagated by the trial. I wouldn't be surprised if MS was helping SCO out, but until there's more proof it will remain a theory. It's important to keep an open mind about this, though: sometimes, conspiracy theories are true!"

The Royal Bank of Canada is the link, My companies canadian office has an account with the Royal Bank of Canada does that mean we are funding SCO? Every tech company in canada has an account with them does that mean they are bankrolling SCO. We purchased a user license from SCO so we could do a UnixWare / Linux performance test does that mean we are assisting SCO? I saw what Microsoft's UNIX license got them at PDC so it makes perfect sense to me why they spent that cash.

RE: Where was Boies?
by Anonymous on Sun 7th Dec 2003 08:32 UTC

This question made the image of The Simpsons pop up, where this sales guy is up + away after having sold the Mono-Rail to Springfiled... :-) Anyone remember that one.?!

And if anybody wanted a lesson in constitutional law
by D.P.G. on Sun 7th Dec 2003 08:34 UTC

Here's Darl spelling it out in an open letter:
http://www.sco.com/copyright/


This is where he makes his feeble attempt to explain how the GPL is "unconstitutional" and not in the spirit of the Founding Fathers.

Here's my favorite quote:
“the motive of profit is the engine that ensures the progress of science.”

As if science has no purpose other than to make money.

@Roberto
by Archie Steel on Sun 7th Dec 2003 09:55 UTC

The Royal Bank of Canada is the link,

No, actually Baystar Capital is the link. It seems that they participate in a lot of PIPEs (Private Investments in Public Equity) such as the investment in SCO. Microsoft and Vulcan (founded by Paul Allen) are among Baystar's top ten PIPE investors. Baystar says that Microsoft is not part of that particular investment, but in the world of high finance it's pretty easy to funnel money around.

It's still no proof, but it does smell fishy.

My companies canadian office has an account with the Royal Bank of Canada does that mean we are funding SCO?

No, and that is not the point I was making. You seem very defensive about this...

Every tech company in canada has an account with them does that mean they are bankrolling SCO.

Again, that wasn't the point I was making. But since we're on the subject, I'm not sure that every tech company in Canada has an account with the Royal Bank. There's also the TD, the CIBC, the Bank of Montreal, and in Quebec the National Bank and the Mouvement Desjardins...Canada is not a one-bank country (even though Royal Bank is the biggest, IIRC).

IBM will lose in January when the judge orders them to disclose to SCO.

I don't see why the judge would force IBM to give a copy of AIX's entire source code to SCO. After all, SCO has stated (many times) that they know what code has been stolen, that they had numerous examples, and so forth.

IBM is witholding as much as SCO is,

Except the two aren't in the same position. IBM is the accused, and SCO is the plaintiff. It's up to the plaintiff to prove that the accused is guilty, it's only natural that they should present their proof.

if you want to play that game why didnt IBM go ahead and disclose to SCO so SCO would disclose with them?

As a matter of fact, IBM has provided most of what SCO has asked for, except for the AIX source code. The reason IBM has (rightfully) presented motions to compel discovery is that SCO clearly shown that it had no intention of providing the specific information required (what about those 1 million printed pages?)

I don't know how you can equate IBM and SCO's position here. It's almost as if you've come to think that SCO actually has a case. This doesn't sound like you...or you're really into that Devil's advocate mindset.

To me, events are unfolding as they should: SCO takes bets, loses them, eventually loses its case. I see nothing in what happened at the hearing to make me doubt this.

SCO's bluff called
by Anonymous on Sun 7th Dec 2003 12:53 UTC

Celebrity lawyer or not, for 10 million bucks the very least Boise could do is show up, especially considering how PR conscious SCO is.

Also those who maintain that this was simply a tactical victory assume that SCO actually knows the provenance of their own code and that in the Linux Kernel. Which seems a bit of a stretch considering the Vegas fiasco. SCO was hoping they wouldn't have to lay thier cards on the table and they've just been called.

@Archie Steel
by Rayiner Hashem on Sun 7th Dec 2003 15:59 UTC

Don't forget that they are suddenly licensing UNIX property from SCO:

http://news.com.com/2100-1016-1007715.html?tag=nl

One can say this is to support their UNIX Service programs, but consider that the package has been around for awhile. Are you telling me that a huge company like MS is just no figuring out that there may be IP issues with the product? That until now, they've been illegally distributing SCO's IP?

Yes
by Nicholas James on Sun 7th Dec 2003 18:43 UTC

You heard them sco shode the "code" you have.

crap
by Nicholas James on Sun 7th Dec 2003 18:46 UTC

Show the "code" you hap, & youguys at osnews add a edit buuton.

Re: @Archie Steel
by Roberto J. Dohnert on Sun 7th Dec 2003 18:58 UTC

<< One can say this is to support their UNIX Service programs, but consider that the package has been around for awhile. Are you telling me that a huge company like MS is just no figuring out that there may be IP issues with the product? That until now, they've been illegally distributing SCO's IP? >>

Did you go to PDC? Have you seen the new Services for UNIX 3.5? Probably not, until you do then you couldnt possibly understand. Until I see real proof that Microsoft is funding SCO then I will take it as vaporware and ramblings of crackpot zealots. I used to think it but then I started looking at all reality. There is no proof MS is funding SCO, absolutely none most of what everyone is doing is reading into a Licensing agreement between two companies if it wasnt Microsoft and SCO, no one would think anything about it.

ridiculous
by ryan on Sun 7th Dec 2003 19:06 UTC

why was this trial allowed to drag on as long as it has without SCO showing any real proof. That is ridiculous. They have caused lots of damage to an industry and companies without showing any proof of their allegations.

Companies have the right to protect themselves if their products are being infringed upon. No problem. but his beast is different. SCO sued first and does not even not the burden of proof. They think sue now find later once they get access.

I really hope ibm sue the guilty parties (sco, sun, MS) to oblivion.

RE: @Anon -- By Rayiner Hashem
by Annon on Sun 7th Dec 2003 19:06 UTC

Thanks for the answer, but that leads to another question.

You stated,

"But that's not what SCO is going for. They want to play the card that if there is infringing code in the kernel, the whole kernel now belongs to SCO, even if they remove the infringing code."

Isn't that kind of like saying: While they weren't looking SCO think IBM stole one of SCO's books and stuck the book on the back seat of the downtown transit bus, which belongs to the public, so, now, SCO gets to keep the whole public owned transit bus.

Isn't that about the same scenario?

I'm just trying to understand the reasoning behind this. Thank you.

@Roberto
by Archie Steel on Sun 7th Dec 2003 19:24 UTC

Until I see real proof that Microsoft is funding SCO then I will take it as vaporware and ramblings of crackpot zealots.

I think you're being a little harsh here. Making a hypothesis based on conjecture may not lead very far, but I'd hardly call them "ramblings of crackpot zealots." Again, there seems to be a lot of hostility in these words. SCO hasn't shown any more proof that there is stolen code in Linux, and yet you seem more ready to give them the benefit of the doubt! Regarding MS's involvement, it would be a safer to simply state that there's no evidence at this point to corroborate this scenario.

How probable the scenario is, now that's an entirely different matter. I must admit that it would not surprise me if it were to be true: they've got the motive (hurt Linux), the resources (40G$ in cash reserves), the means (Baystar Capital), the long history of previous shady deals and underhanded tricks...

Frankly, I'm puzzled over your refusal to even consider that they might be involved, just because there's no hard proof. Consider this instead: if you were MS and this is what you wanted to do, wouldn't you do this in such a way as to leave no obvious traces behind?

For sure, nobody can prove that MS is supporting SCO in its fight against Linux, and it would be foolish to claim that this is undoubtedly the case. But I think it's equally foolish to refuse to see this as a very real possibility.

Again, sometimes conspiracy theories turn out to be true!

Re: @archie_steel
by Roberto J. Dohnert on Sun 7th Dec 2003 22:08 UTC

<< I think you're being a little harsh here. Making a hypothesis based on conjecture may not lead very far, but I'd hardly call them "ramblings of crackpot zealots." Again, there seems to be a lot of hostility in these words. SCO hasn't shown any more proof that there is stolen code in Linux, and yet you seem more ready to give them the benefit of the doubt! Regarding MS's involvement, it would be a safer to simply state that there's no evidence at this point to corroborate this scenario. >>

Yes I am ready to give SCO the benefit of the doubt because yes I do believe there is some form of copyright infringement in Linux. It exists with large corporations and the larger a code base grows, the harder it is to say you are 100% certain that infringements do not exist. Has SCO blown it out of proportion, yes I believe they have, I dont think its a million lines of code. Was the infringement done purposely? No I dont think so. When you get hundreds of thousands of developers working on something it is not safe to believe that these people are all 100% honest, god fearing people. This is smewhat of a wakeup call. Something needs to change to keep accusaions such as this from happening again. I dont agree with many people in the community who just want life to go on like it was before. Because it cant. It is hard when you clone something to not infringe on someones copyright. I agree with SCO when they say the Open Source community needs some checks and balances. There are some project leaders that do check copyright and patent information, but more than less do not and that concerns me. The infringements will be cured and Linux can go on but It cannot go on like it was before because that would be a foolish and irresponsible thing to do. To not allow change especially to counter something such as copyright and patent infringement checks to be implemented is also very foolish. If the Open Source community wants things done as befoe i think you will see support for their software drop and that would be a bad thing to happen.

<< Frankly, I'm puzzled over your refusal to even consider that they might be involved, just because there's no hard proof. Consider this instead: if you were MS and this is what you wanted to do, wouldn't you do this in such a way as to leave no obvious traces behind? >>

I never said it was impossible just not probable, but also take into account that when something like this happens and your enemy gets involved, it ussually is the cry of the accused to blame their enemy.

If i sound hostile that is not my intent.

re: Archie Steel
by Foo Bar on Sun 7th Dec 2003 22:43 UTC

>>I disagree that this is "nothing worth cheering over." >>While it is true that it's a procedure, it is >>nonetheless the first hearings in the case - and more to >>the point, it does force SCO to reveal what the >>allegedly stolen code is. So far SCO has resisted this >>tooth and nail - while in reality it would be >>advantageous to them to show that code (imagine how >>their stock would skyrocket!).

Consider this. Even if SCO shows a single line of code that it believes is infringing, it then has the leverage to ask the court to compel IBM to release *all* of the code that IBM contributed to Linux so that SCO can do a complete examination. In other words, this is just a formality.

Furthermore, it doesn't prevent SCO from expanding the case as it discovers more violations.

re: Annon
by Foo Bar on Sun 7th Dec 2003 22:45 UTC

>>If SCO is able to produce that nasty infringing code -- >>wouldn't that simply allow for those incline to go ahead >>and write replacement code that has nothing to do with >>SCO and their IP?

Sure, assuming that the court allowed you to see the evidence. But they probably won't because SCO will ask the court to keep the evidence sealed. Similarly, even IBM's lawyers leaked the code (or if you were to psychically determine what it is) and you expunged the offending code from Linux, it wouldn't indemnify IBM from liability, if the court finds it violated the ATT/SCO contract.

re: Archie Steel
by Foo Bar on Sun 7th Dec 2003 22:55 UTC

>>>Frankly, I'm puzzled over your refusal to even consider >>>that they might be involved, just because there's no >>>hard proof. Consider this instead: if you were MS and >>>this is what you wanted to do, wouldn't you do this in >>>such a way as to leave no obvious traces behind?

SCO is a publicly traded company. If MS were involved beyond a licensing agreement, SCO would be required by law to disclose the financial arrangements. Unlike a private company, SCO can't keep those things private. But it hasn't happened. Which means that MS ain't involved. Get it?

re: Archie Steel
by ryan on Sun 7th Dec 2003 23:03 UTC

"SCO is a publicly traded company. If MS were involved beyond a licensing agreement, SCO would be required by law to disclose the financial arrangements. Unlike a private company, SCO can't keep those things private. But it hasn't happened. Which means that MS ain't involved. Get it?"

not necessarily. Corporations are not requird to make everything public. moreover, you seem oblivious to the fact that not everyone follows the law. for an example please see MS's conduct after its "settlement" with the DoJ or better yet try reading about mr. richard nixon and watergate. Big money leads people to do a LOT more than just lie.

@Foo Bar
by Archie Steel on Sun 7th Dec 2003 23:41 UTC

Even if SCO shows a single line of code that it believes is infringing, it then has the leverage to ask the court to compel IBM to release *all* of the code that IBM contributed to Linux so that SCO can do a complete examination.

Except that this is not all that SCO is asking for. It's asking for the entire AIX source code. IBM has already produced a lot of what they were asked to produce, but SCO's demands are unreasonable. They are being overly broad, and at the same time refuse to be specific in providing what they are being asked to. That's not a winning strategy - that's tactical stalling, so that the price of their stock remains high.

SCO is a publicly traded company. If MS were involved beyond a licensing agreement, SCO would be required by law to disclose the financial arrangements. Unlike a private company, SCO can't keep those things private. But it hasn't happened. Which means that MS ain't involved. Get it?

MS ain't directly involved, that's for sure. But that's investment companies and PIPEs are for - Baystar Capital isn't required by law to disclose who participates in a PIPE such as the one that injected 50M$ into SCO. They say that MS wasn't involved in that particular one, but they could be twisting the truth on this.

If MS wants to funnel money to SCO without anyone finding out (at least for a while), there are means at their disposal.

Roberto

Yes I am ready to give SCO the benefit of the doubt because yes I do believe there is some form of copyright infringement in Linux. It exists with large corporations and the larger a code base grows, the harder it is to say you are 100% certain that infringements do not exist.

Agreed. However, this is just a possibility, not a certainty, and if one is to consider Linux-the-kernel, there is a rather strict system of checks and balances similar to the one you propose. So to me, the probability that SCO is right is lesser than the probability that SCO receives support (direct or indirect) from MS. But of course I could be wrong - we'll have more info in 30 days, I suppose...

SCO told the judge
by Richard James on Mon 8th Dec 2003 01:03 UTC

IBM stole some of our toys but we don't know which toys they stole, even though we looked into IBM's toy box and saw our stolen toys.

Which makes no sense at all. No wonder the Judge ruled against them.

And top speed don't be stupid, IBM has walked all over SCO. I mean if they use gibberish as a legal argument they will lose. Law is not about HYPE it is abou the TRUTH. You can say we are going do this, and sue this, and subpoena this but if a the end of the day you have no CASE you LOSE.