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"Did Too", "Did Not" - The IBM-SCO letters on Discovery Side by Side |
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Tuesday, February 10 2004 @ 05:03 PM EST
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More creativity from Groklaw reader Rob Ebeli, a comparison, side by side, of what IBM said in its letter SCO needed to produce and SCO's reply. Enjoy.
IBM's Letter on What SCO Failed to Produce
IBM's
Letter on What SCO Failed to Produce
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SCO
Replies to IBM's Letter About Missing Discovery Items
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First, SCO still fails to identify any
files or lines of code in its own UNIX System V product that IBM is alleged
to have misappropriated or misused.
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First, IBM claims that SCO has failed
to identify any files or lines of code in its own UNIX System V product that
IBM is alleged to have misappropriated or misused. This theme of a purported
lack of identification of System V code is repeated throughout IBM's letter
in an attempt to disparage the quality of SCO's supplemental answers to
interrogatories. The problem is that this idea ignores some basic facts. For
example, AIX contains over 1000 files that have attribution to AT&T.
Indeed, it is because AIX is replete with AT&T code that IBM requires
that any company that wanted to view AIX must obtain permission from AT&T
(and eventually SCO). If AIX was not filled with this AT&T code there
would be no reason for IBM to require such permission. As a result of these
facts, it is clear that AIX and Dynix are modifications of or derivative
works based on System V. IBM, accordingly, was obligated treat AIX and Dynix
as it agreed to do in the respective license agreements. IBM did not and that
is what is detailed in the revised supplemental answers.
Without re-pleading the
Amended Complaint in this letter, SCO has in fact identified IBM's misuse of
the Protected Materials under the IBM Related Agreements and Sequent
Agreements. The revised supplemental answers go into excruciating detail as
to such misuse. IBM keeps insisting on something that is not part of SCO's claims,
so it should come as no surprise that files or lines of code in System V have
not been identified. Moreover, this latest concern is belied by the language
in IBM's proposed order on the Motion to Compel when IBM itself wanted SCO to
provide "the exact location in Unix System V or elsewhere
were [sic] such information is found or expressed. . ." SCO, in fact,
has done so.
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Second, although the Court ordered SCO
to identify code by file and line, SCO has not identified the particular
files or lines of code at issue in either UNIX System V, Dynix/ptx, AIX, or
Linux with respect to SCO's allegations regarding "asynchronous
input/output", "scatter/gather input/output" and
"SMP". In addition, SCO fails to identify any lines of code with
respect to the Dynix/ptx and Linux files listed in Table A of SCO's
supplemental responses.
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Second, IBM claims certain of SCO's
answers are deficient because they do not provide the detail of particular
lines of code for selected technologies (A/I/O, SMP, etc.). IBM also protests
that the Dynix/ptx/RCU files identified in Table A do not specify the line
for line matches. As set forth in our Supplemental Answers to
Interrogatories, the code comparisons for the items that appear in Table A
appear throughout the entire file, so we have not matched the lines in Dynix
that IBM provided to Linux and that now appear in Linux. Similarly, your
criticisms about the failure to identify lines of code in A/I/O,
scatter/gather input/output and SMP ignore what SCO stated in its answers to
interrogatories and the Declaration of Ryan Tibbitts. As detailed therein,
SCO specifically noted that it needs the full production of source code from
IBM. See Revised Supplemental Answers, pp. 13-17, 26-30. Without the
underlying source code from AIX and Dynix, SCO quite obviously cannot
identify the lines of AIX and Dynix that match to IBM's contributions of
those lines of code in Linux. Until IBM provides this complete information,
which it had only begun to do before discovery was stayed, SCO is not in a
position to further answer with respect to the aforementioned technologies.
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Third, SCO completely fails to
identify the nature and source of its rights in the Dynix/ptx, AIX and Linux
code identified in its supplemental responses As SCO's primary contention
appears to be that IBM improperly contributed code to Linux that was directly
copied, or derived, from its UNIX System V code, SCO must identify the UNIX
System V code that IBM is alleged to have misused with respect to all of the
Dynix/ptx, AIX and Linux code identified in SCO's responses.
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Third, IBM claims SCO has failed to
answer Interrogatory No. 2 that asked for the nature and source of SCO's
rights in the alleged trade secret or confidential or proprietary information
identified in response to Interrogatory No. 1. Again, IBM is ignoring what
has been clearly stated throughout this case, both in the Amended Complaint
as well as the Answers to Interrogatories. SCO's rights arise from the IBM
Related Agreements and the Sequent Agreements. In these documents, there are
very clear restrictions and prohibitions on IBM's use of AIX and Dynix, all
of which are detailed in the answers.
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Fourth, SCO fails to identify all of
the persons and entities other than IBM and Sequent to whom it has granted
rights to any of the specific UNIX System V code at issue in this case. As
SCO admits it has granted rights to UNIX System V to thousands of individuals
and entities, SCO must be in a position to identify all of these persons and
entities and the nature and source of their rights.
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Fourth, IBM claims that SCO did not
respond to Interrogatory No. 2 regarding the identity of all persons who have
or had rights to the alleged trade secret or confidential or proprietary
information. Again, IBM is attempting to change the scope of the claims
asserted under the license agreements. SCO has answered the question as asked
and as appropriate in light of the claims asserted against IBM. Moreover, to
the extent IBM now wants to know all of the persons or entities that had a
license to System V, and the terms and conditions of those agreements, that
information is set forth in the license agreements that have been produced in
this litigation. At this point, the Interrogatory asked SCO to identify all
persons who have or have had rights to the alleged trade secret or
confidential or proprietary information identified in response to
Interrogatory No. 1. SCO has in fact identified those people in response to
Interrogatory No. 2.
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Fifth, SCO fails to identify all of
the persons and entities other than IBM and Sequent to whom it has disclosed
any of the specific UNIX System V or Linux code at issue in this case. Since,
among other things, SCO has publicly stated it has shown code that is alleged
to have been improperly contributed to Linux to investors, financial analysts
and others pursuant to non-disclosure agreements, we expect SCO to at least
identify to whom, and under what circumstances and terms, such code was
disclosed.
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Fifth, IBM criticizes SCO's response
to Interrogatory No. 3 claiming SCO failed to identify persons or entities
(other than IBM or Sequent) to whom it (presumably meaning SCO) has disclosed
any of the UNIX System V or Linux code at issue in this case. IBM then makes
reference to the fact that SCO has shown code to investors, analysts and
others under an NDA.
Again, IBM's criticism
does not track the language of Interrogatory No. 3. In that question, IBM
actually asked to identify all persons to whom the alleged trade secret or
confidential or proprietary information is known or has been disclosed and
describe, in detail, the circumstances under which it became known or was
disclosed. We have answered that question. Regarding your comment of SCO's
public statements that it has shown code that was improperly contributed to
Linux, we have in fact provided that information. First, as has been stated
on repeated occasions and which was reiterated in SCO's Answers to
Interrogatories, the direct line-for-line copying of System V code that SCO
has found was not contributed by IBM, but instead was contributed by Silicon
Graphics. That code was provided to IBM in response to the Answers to
Interrogatories and can be found at tab Exhibit A-2 and Exhibit A-4. However,
reference to that code is not responsive to this question because this
question is limited to IBM's improper actions, not those of others.
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Sixth, SCO also fails to identify all
places or locations where the code at issue in this case may be found or
accessed (such as on SCO websites), and all the specific SCO products ---
UNIX, UnixWare, Linux, or otherwise --- in which the code at issue in this
case was included, and when, to whom and under what terms such products were
distributed or made available.
Although SCO does
identify two of its Linux products that contain the Linux 2.4 kernel code at
issue, we believe that there are other products that SCO distributed or made
available that also contain such code (such as Caldera Open Linux 3.1).
Further, as SCO also appears to claim that the Linux 2.2.12 kernel contains
code that was misappropriated or misused by IBM, SCO must also identify all
SCO products in which it distributed the Linux 2.2.12 kernel, and when, to
whom, and under what terms such products were distributed or made available.
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Sixth, IBM has attempted to reframe
Interrogatory No. 3(d), which asks for all places or locations where the
alleged trade secret or confidential or proprietary information may be found
or accessed. SCO has done so. In response to that question, SCO noted that
the tables and extensive tabbed exhibits specifically mark where the
information is located in Linux. Indeed, in IBM's proposed order, IBM
previously wanted to know where in Linux or other software such information
may be found, including the version and release of the software, the file and
the line of code therein. The tables and tabbed exhibits provide this
detailed information.
Moreover, regarding
IBM's specific comment that SCO must identify where on its website and in
which SCO products the Protected Materials may be found or accessed, that has
been done. As indicated in response to Interrogatory Nos. 3 and 13, the
Protected Materials would be found in any other product that contains Linux
2.4 kernel or above and SCO distributed the Linux 2.4 kernel and above for a
brief period of time in SCO Linux server 4.0. Moreover, we provided you with
the invoices that laid the terms under which these materials were made
available.
The commentary that IBM
believes there are other products that SCO distributed or made available
containing such code is incorrect. Specifically, IBM's claim that the Linux
2.2.12 kernel contains infringing code and therefore SCO must produce all
products in which it distributed the Linux 2.2.12 kernel is simply incorrect.
Using the instance of IBM's improper contributions of JFS to Linux, IBM
certainly is aware that it appeared as a patch in Linux 2.2.12. However, JFS
was not accepted into the “official” Linux source tree until Linux 2.4.20.
Therefore, although IBM publicly displayed JFS in violation of the IBM Related
Agreements as early as Linux 2.2.12, JFS did not become a standard part of
Linux until 2.4.20. In other words, prior to Linux 2.4.20, the only Linux
distributions that included JFS were ones that had downloaded JFS from IBM's
website and added it to that distribution. SCO did not do so therefore,
contrary to Mr. Shaughnessy's statement, Caldera Open Linux 3.1 did not
include IBM's improper public display of JFS.
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Seventh, SCO fails to identify all of
the copyrights that exist in any of the UNIX System V code at issue in the
case. Although SCO identified its own copyrights in such materials, it fails
to identify any third-party copyrights that may exist in the code including,
for example, copyrights of Berkeley Systems Design, Inc. ("BSD").
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Seventh, contrary to the accusation, SCO
has responded to Interrogatory No. 5(b) and identified all copyrights
relating to the alleged trade secret or confidential or proprietary
information identified in response to Interrogatory No. 1. To SCO's
knowledge, there are not third party copyrights in those materials. If IBM is
aware of such copyrights, please identify them for SCO and the answer will be
supplemented.
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Eighth, SCO fails to identify by line
the XFS code that Silicon Graphics, Inc. ("SGI") allegedly improperly
contributed to Linux, or the UNIX System V files and lines of code from which
the XFS code, and also the application binary interface ("ABI")
files referenced by SCO in its responses, was copied or derived.
SCO additionally fails
to describe whether, when, to whom and under what circumstances and terms, it
ever distributed the ABI files and the XFS code.
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Eighth, IBM is concerned about SCO's
response to Interrogatory No. 12 in which IBM asked SCO to identify all
source code and other material in Linux to which Plaintiff has rights. In
particular, IBM is concerned that SCO failed to identify by line XFS
code improperly contributed to Linux in violation of SGI's license
agreements. As set forth in SCO's revised and Supplemental Answers, XFS is a
journaling file system developed by SGI and used in SGI's IRIX operating
system, which was subject to SGI's license agreement with SCO and its
predecessors. SCO identified each of the XFS files that were contributed. The
reason SCO has not identified specific lines in the files set forth in our
Revised Supplemental answers is, as was set forth on page 66 of the answers,
SCO has not had access to versions of IRIX to compare and identify the
IRIX/XFS files and lines of code to then identify those same lines as they appear
in Linux. With respect to the ABI files, I am not sure what the concern is
about SCO's alleged failure to identify by line the improper contributions.
In Exhibit B to the Revised Supplemental answers, the tabbed exhibits clearly
identify the lines that were improperly contributed.
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Mr. Shaughnessy
concludes this section by commenting that “SCO additionally fails to
describe whether, when, to whom and under what circumstances and terms, it
ever distributed the ABI files and the XFS of those code.” Interrogatory 13
and IBM's proposed order were directed to distribution of IBM's
infringements, not the improper contributions of others. Accordingly, SCO
provided the answer as set forth in Interrogatory 13.
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First, SCO has yet to produce numerous
categories of responsive documents, including but not limited to:
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Regarding IBM's concerns
over SCO's document production, we will likewise address those matters
seriatim. Under the heading “First”, Mr. Shaughnessy identified
thirteen categories of documents. Each of those is specifically addressed
below.
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(1) the Linux
intellectual property licenses SCO has publicly claimed it has sold to at
least ten companies;
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(1) “The
Linux intellectual property licenses SCO has publicly claimed it has sold to
at least ten companies.” At this juncture, I am only aware of a license
with Computer Associates, Questar and Leggett & Platt. The Computer
Associates document was collected and approved for production, but the third
party vendor being used for this document production did not burn the image
on a CD. We, of course, will produce this document. The remaining documents
were received by the client well after the collection of documents took place
and therefore was not included in the production. We will produce this
document as well.
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(2) the letters SCO sent
to UNIX licensees, Linux end-users and Fortune 1500 companies regarding Linux
and/or AIX, or any responses it received to such letters;
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(2) "The
letters SCO sent to Unix licensees, Linux end-users and Fortune 1500
companies regarding Linux and/or AIX, or any responses it received to such
letters.” Regarding the letters sent in May and December 2003, there is
only the form letter, which obviously you have downloaded from SCO's website,
and the distribution list. There are not copies of all 1500 letters that were
sent out. The form letter was previously produced at Bates 1269622-1269623.
In addition, to the extent you want the distribution list used for the mail
merge, we can provide this as well.
The December letter was created after the
documents were collected from SCO, so it would not have been in production.
Again, although you already have a copy of the form letter, we will provide
it if you want it.
Regarding the responses
to each of these letters, SCO will check to see if it received any responses
to the May letter. To the extent it has received responses to the December
letter, those responses obviously were received after documents were
collected form the client. To the extent you want these responses, we can
collect those documents and provide them to you as they are kept in the
ordinary course of business.
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(3) the letters SCO sent
to members of Congress regarding Linux, or any responses it received to such
letters;
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(3) “The
letters SCO sent to members of Congress regarding Linux or any responses it
received to such letters.” As you know, this letter was sent January 8,
2004 , so it was well after there was any collection of documents from the
client. The client apparently does have copies of each of these individual
letters, so if you would like to have those documents, we will produce them
to you.
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(4) SCO's customer
contracts with which IBM is alleged to have interfered (including at least
its contracts with AutoZone, Sherwin Williams and Target);
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(4) “SCO's
customer contracts with which IBM is alleged to have interfered (including at
least its contracts with Auto Zone, Sherwin Williams and Target).” The
Sherwin Williams contract has been produced and can be found at Bates Nos.
1299855-1299865. We are further investigating if other portions were produced
elsewhere in the production. As to Auto Zone and Target, they should have
been produced. If they were not produced, I will make arrangements to have
them produced immediately.
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(5) the code comparisons
shown by SCO to financial analysts or others pursuant to a non-disclosure
agreement;
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(5) “The
code comparisons shown by SCO to financial analysts and others pursuant to a
non-disclosure agreement.” This document was located in Chris Sontag's
files. Apparantly, the document had notations on it that caused it to be
designated as privileged. This designation of privilege was in error and the
document will be produced.
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(6) the code comparisons
performed by consultants retained by SCO, the results of which were publicly
discussed by SCO;
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(6) “The
code comparisons performed by consultants retained by SCO, the results of
which were publicly discussed by SCO.” These documents were created by
consulting experts who have not been designated to testify in this case. As a
result, such documents are protected from disclosure under Rule 26(b)(4).
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(7) documents concerning
the creation and development of its UNIX products;
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(7) “Documents
concerning the creation and development of its Unix products.” These
documents can be found throughout e-mail and correspondence in the materials
provided. In addition, design documents can be found extensively throughout
CD 144.
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(8) the pleadings,
deposition transcripts and deposition exhibits from UNIX Systems
Laboratories, Inc.'s ("USL") suit against BSD;
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(8) “The
pleadings, deposition transcripts and deposition exhibits from UNIX System
Laboratories, Inc. (“USL”) suit against BSD.” SCO does not have such
documents in its custody, control or possession.
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(9) documents concerning
SCO's suit against Microsoft, Inc., including at least a copy of all
discovery requests and responses in the case;
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(9) “The
documents concerning SCO's suit against Microsoft, Inc., including at least a
copy of all discovery requests and responses in the case.” As we
previously mentioned, SCO was not a party to this litigation and does not
have possession of such documents. Moreover, as we related to your colleague
Peter Ligh in May 2003, the documents in the Canopy Group's possession were
destroyed pursuant to Court Order issued in that unrelated litigation. Our
understanding, however, is that Microsoft or its lawyers may still have the
documents you are seeking, so you may wish to contact them.
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(10) the exhibits to the
August 1, 2000 agreement between Caldera Systems, Inc and the Santa Cruz
Operation; and
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(10) “The
exhibits to the August 1, 2000 agreement between Caldera Systems, Inc. and
Santa Cruz Operation.” To the extent that such documents are in the
possession of SCO, IBM is certainly entitled to such documents. We will
undertake an additional search to attempt to locate them and thereafter
produce them.
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(11) documents
concerning the acquisition of USL by Novell, Inc.;
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(11) “Documents
concerning the acquisition of USL by Novell, Inc.” Any such documents in
SCO's possession have been produced. Nonetheless, SCO will undertake further
investigation to attempt to locate such documents. A preliminary
investigation reveals that this document may be one of the problem documents
in CD 196, which is discussed in further detail below. In any event, we will
provide this document.
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(12) SCO's educational
materials concerning Linux, the GPL, and its open- source development
activities; and
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(12) “SCO's
educational materials concerning Linux, the GPL, and its open source
development activities.” There are several issues with this item. First,
as with many of the foregoing items IBM has listed, Fed.R.Civ.P. 34(b)
requires that parties produce documents either as they are kept in the
ordinary course of business or label them to correspond to specific requests.
In large scale litigation like this, parties typically produce the documents
as they are kept in the ordinary course of business. Thus, to the extent any
such materials have been produced, they are found in many different files.
One such person with documents responsive to this request would be Andy
Nagle. Educational documents in Mr. Nagle's possession are further found at
Bates Nos. 1307625-1307643; 1307686-1307714; 1307644-1307665;
1307680-1307685. I am providing you with this information despite the fact
that nowhere in IBM's First or Second Request for Production did it ask for
educational materials.
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(13) documents
concerning the GPL.
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(13) “Documents
concerning the GPL.” As with item 12, to the extent there are e-mails,
correspondence or other documents located in various files regarding the GPL,
they have been produced and can be found as they are kept in the ordinary
course of business. There are, however, specific responsive documents that
may be found at Bates Nos. 1297464-1297486; 1182904-1182908.
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Second, SCO has thus far only produced files from 17
individuals. Presumably others of SCO's employees have documents responsive
to IBM's First and Second Document Requests, including Gregory Blepp, Philip
Langer, John Maciaszek and Porter Olson, among others.
In any case, the
productions from these 17 individuals appear to be incomplete. Although SCO
has provided numerous e-mails from these individuals, SCO has not produced
any of the corresponding attachments to those e-mails. In addition, for
certain individuals (including Darl McBride), SCO has produced received
e-mails, but not any sent e-mails.
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Under your heading for “Second,” IBM identified
four individuals from whom you have not received documents -- Gregory Blepp,
Philip Langer, John Maciaszek and Porter Olsen. As to Gregory Blepp, his
documentation was not produced because IBM had sought to limit production in
this case to persons in the United States. SCO agreed to this limitation if
it was reciprocal and provided that no work on AIX, Dynix or Linux occurred
outside the United States . No work on AIX, Dynix or Linux occurred while Mr.
Blepp was at SCO and furthermore he is located outside the United States. As
a result, his files were not collected. If you would like to revisit the limitation
originally raised by IBM, we will collect any non-privileged responsive
documents from Mr. Blepp. As to Philip Langer, there are no documents. As to
Porter Olsen, he was a junior employee who left SCO in November. SCO
previously attempted to obtain his documents but did not recover any. I will
have to try again to recover any responsive documents. As to John Maciaszek,
his documents had been collected and we believed had been produced. However,
upon seeing your observations that his document had not been produced, we
discovered that the third party vendor had not included his and about 20
other persons' information in the queue to be produced. As a result of IBM's
prioritizing certain individuals, such as Darl McBride and Chris Sontag, and
thereafter identifying directors and officers of the company from whom IBM
immediately wanted documents, this batch of collected documents was set aside
and apparently never incorporated into the CDs to be produced. We are making
arrangements to have these documents produced on a expedited basis.
As to your concern about
documents from those individuals who were produced and, in particular, the
fact that attachments do not appear for each of the e-mails, the system only
produces the attachment to the e-mail one time. Thus, if an identical
attachment appears multiple times at different e-mails, it will only be
produced one time. As to your concern about Darl McBride not having produced
“sent' e-mails, he infrequently sends e-mails. Nonetheless, based upon IBM's
comments and the expectation that there would be at least some sent e-mails,
we further investigated why sent e-mails for others have not been produced.
Apparently, only some of the “sent” e-mails were on the servers of SCO. The
sent e-mails for some executives apparently are not on the server and instead
are only located on their individual machines. SCO has already begun the
collection process to obtain the “sent” e-mails as expeditiously as possible
and, to the extent such e-mails are available, they will be produced.
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Third, SCO still has not produced the source code for numerous of its
software programs, including at least: OpenLinux 1.0, Open Linux 2.4, SCO
Manager, SCO Open Desktop Release 3, SCO Volution, UNIX Version 1, UNIX
Version 2, UNIX Version 3, UNIX Version 4, UNIX Version 5, UNIX Version 8,
UNIX Version 9, UNIX Version 10, UNIX System IV, UNIX System V Release 2.1,
UNIX System V Release 3.1, UNIX System V/386 Release 3.2, UNIX System V
Release 4.0MP, Intel386 implementation, UNIX System V Release 4.1, UNIX
System V Release 4.1 MP, UNIX System V Release 4.2, Intel386 implementation,
UNIX System V Release 4.2 MP, Intel386 implementation, UNIX System V 4.2
ES/MP, and UnixWare 7.0.3.
Since SCO was previously able to produce the source code
for a number of these programs in paper form, there should be no difficulty
in producing such code in electronic form.
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Under the heading “Third”, Mr. Shaughnessy
identifies various releases of software it claims have not been produced and
then concludes that SCO was previously able to produce the missing source
code for a number of these programs in paper form. As an initial matter, any
source code that was produced in paper form came from a CD and therefore has
been produced. I think the confusion may have arisen from a typographical
error. The source log shows UnixWare 7.0.3 being delivered in the first delivery.
It should have said UnixWare 2.0.3, which has been redelivered.
More specifically addressing the items listed, I have
set forth a chart below detailing a response to each of your concerns. As you
can see, we have already produced all such source code in our possession and
have identified for you in which CDs you may find such source code. There are
four items that were not previously produced and have now been located will
be produced. First, Volution Manager, which was an obsolete optional product,
has been located and will be produced. Because this was the first time you
asked for such source code by name, no effort was previously made to attempt
to locate this obsolete product. Second, for the Unix System V Release 4.0MP
Intel i386 version, Unix System V Release 4.1 3 B2 version and Unix System V
Release 4.2es/MP Intel i386 version, SCO did not have these in its source
code library, which is why they were not discovered earlier. However, further
investigation revealed they were located in a separate server and have made
arrangements to produce those documents.
Missing
per 1-30 letter
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Notes
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Production
CDs
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Open
Linux 1.0
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Not
available
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NA
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Open Linux 2.4
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AKA eDesktop 2.4
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81s, 82b
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SCO
Open Desktop Release 3
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Delivered
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54s
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UNIX
Version 1
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SCO
does not have this source code
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NA
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UNIX
Version 2
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SCO
does not have this source code
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NA
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UNIX
Version 3
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SCO
does not have this source code
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NA
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UNIX
Version 4
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SCO
does not have this source code
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NA
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UNIX
Version 5
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SCO
does not have this source code
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NA
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UNIX
Version 8
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SCO
does not have this source code
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NA
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UNIX
Version 9
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SCO
does not have this source code
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NA
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UNIX
Version 10
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SCO
does not have this source code
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NA
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UNIX System IV
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SCO
does not have this source code
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NA
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UNIX
System V Release 2.1
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AKA
System V2.1 3B2
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95s
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UNIX
System V Release 3.1
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AKA
System V Release 3.1
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96s
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UNIX
System V/386 Release 3.2
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AKA
System V Release 3.2 i386
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96s
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UNIX
System V Release 4.1 MP
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Not a
valid release number
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NA
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UNIX
System V Release 4.2, Intel 386 implementation
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AKA
UnixWare 1.1
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148s,
111scp, 151b
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UNIX
System Release 4.2 MP, Intel 386 implementation
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AKA
UnixWare 2.0.3
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147s,
156scp, 152b
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Unix
System V 4.2 ES/MP
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virtually
the same as UW 2.0.3
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UnixWare
7.0.3
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Mislabeled
on first delivery, should have been UnixWare 2.0.3, was redelivered in
source
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139s,
98scp
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Fourth, there are serious defects in a number of the CDs SCO
has provided to IBM. CDs 196, 211, and 212 are missing thousands of pages of
documents SCO claims in its production log to have already produced. In all,
more than 10,000 pages have not been produced.
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On the item listed as “Fourth,” I have been
corresponding and speaking with Christopher Kao of your office regarding CDs
196, 211 and 212. With respect to CDs 211 and 212, there was simply a
technical error with the vendor and those CDs have been re-burned and I will
send those corrected CDs. As to CD 196, it appears that certain documents
were marked privileged that should not have been marked privileged and,
conversely, privileged documents were not marked as privileged. We are fully
investigating this CD and will issue a replacement CD once we are able to
electronically correct this error.
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SCO's Document
Production.
Based on preliminary
review, it appears that SCO's document production remains substantially
incomplete.
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Authored by: Anonymous on Tuesday, February 10 2004 @ 05:12 PM EST |
It's like SCO is treating the court order as some sort of polite request that
they can obey or not, as they choose.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 05:19 PM EST |
Novell sent SCO a letter on Feb. 6, telling them to get off of Sequent's (and
IBM'S) back by noon MT tomorrow!
http://www.novell.com/licensing/indemnity/pdf/2_6_04_n-sco.pdf
Hmmmmmmmmm;^)[ Reply to This | # ]
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Authored by: cacruden on Tuesday, February 10 2004 @ 05:21 PM EST |
>?The code comparisons performed by consultants retained by
>SCO, the results of which were publicly discussed by SCO.?
>These documents were created by consulting experts who have
>not been designated to testify in this case. As a result,
>such documents are protected from disclosure under Rule
>26(b)(4).
What does this rule state? I thought the only things that were priveledged
were: all communications with your lawyers, and the work products that the
lawyers created..... If these consultant experts were "retained by
SCO" and not by the SCO's lawyers.... is this a protected work product.
Also, if the results were referenced in public arguements, does priveledge get
waived?[ Reply to This | # ]
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Authored by: grouch on Tuesday, February 10 2004 @ 05:25 PM EST |
PJ:
<table border="1" cellspacing="0"
cellpadding="0">
to
<table border="1" cellspacing="0"
cellpadding="0"
summary="table comparing IBM, SCO letters">
Right after that:
<tr>
<td valign="top"> change to <td valign="top"
width="50%">
<p><b><span [bunch of stuff]
</td>
<td valign="top"> change to <td valign="top"
width="50%">
That will make the columns equal width.
(Personal peeve: the 'font-size:9.0;font-family:Verdana' stuff, but that has
nothing to do with the function of the table).
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 05:29 PM EST |
April 30, 2003 (a sunday) a microsoft vice president completed the licensing
deal with SCO. In may, sun had to rush to copy the documents from the lawsuit
Caldera vs. Microsoft they need for their Java lawsuit before they were shred.
Nice timing.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 05:53 PM EST |
From Night Flyer:
IBM says (about 1/2 way down):
8) the pleadings, deposition transcripts and deposition exhibits from UNIX
Systems Laboratories, Inc.'s ("USL") suit against BSD;
SCO says:
(8) “The pleadings, deposition transcripts and deposition
exhibits from UNIX System Laboratories, Inc. (“USL”) suit
against BSD.” SCO does not have such documents in its custody, control
or possession.
---------
I'm sure that I remember Darl saying that he had detailed knowledge of the
(sealed) outcome of the BSD vs USL lawsuit and the judgment and we (Linux) were
in for some surprises that they were going to use in the court proceedings with
IBM and Linux users. Is this another one of those groundless FUD comments, that
we need to add to our list?
----------
Veritas Vincit - Truth Conquers.
[ Reply to This | # ]
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Authored by: blacklight on Tuesday, February 10 2004 @ 06:02 PM EST |
Congrats! The side-by-side makes the deconstruction so much easier and
effective.
I'll start with First:
"For example, AIX contains over 1000 files that have attribution to
AT&T. Indeed, it is because AIX is replete with AT&T code that IBM
requires that any company that wanted to view AIX must obtain permission from
AT&T (and eventually SCO)."
Counterpoint: for all I know, AIX may have a lot more than 1000 files and only
some portions of these files have AT&T code. And since this code has
AT&T attribution, it is properly there in AIX.
"If AIX was not filled with this AT&T code there would be no reason for
IBM to require such permission."
Counterpoint: Is AIX filled with this AT&T code the way a single drop of
water fills a 5-liter (or 1-gallon) bottle? Recall Marriott's Dec 5 "little
SysV book vs. big AIX book" comparison.
"As a result of these facts, it is clear that AIX and Dynix are
modifications of or derivative works based on System V."
Counterpoint: this is where the gravity-defying leap of logic takes place.[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 06:06 PM EST |
SCO says themself that there is no SysV code in Linux.
Ok, it is still not clear if IBM had the right to put AIX code into Linux or not
- but that's contract matter.
But HOW, can they publicly LIE about it? ("there are millions of lines
copied from SysV")
I know, I'm too naive, but somehow I believed SCO might just be incompetent and
misguided. Now they admitted that they know there is no SysV code in Linux and
were knowingly lying.
Isnt lying to get people to buy something from you a crime? False advertising,
fraud, extortion, whatever?
Can we finally put them into prison because they just admitted they KNOWINGLY
lied to the public to sell their Linux licenses?[ Reply to This | # ]
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Authored by: p0ssum on Tuesday, February 10 2004 @ 06:08 PM EST |
Ok, I have read these documents and in total they closely match the same thing
happening in the court room.
My question is this...
If the judge has ordered them to produce discovery and they
decide not to based on the fact that they do not believe it is material to the
case, is that contempt?
It seems to me, not producing this discovery is a direct violation of the order
of the court. Am I missing something?
If this does not rise to the level of contempt, does it give
*IBM reason to ask for summary judgement? I think what I am asking is how
important is this order(discovery) and can SCO comply or not based on its belief
of the case?
*(I work for IBM)
---
There are 10 types of people in this world, those that understand binary and
those that do not.[ Reply to This | # ]
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Authored by: MathFox on Tuesday, February 10 2004 @ 06:08 PM EST |
Im one of the tables that SCO produced they pronounce that they don't have the
source for "Open Linux 1.0" available. It is unusual for a software
company to lose sources. In the light of the GPL requirement to provide source
code... I wonder how the code got "lost".
---
MathFox gets rabid from SCO's actions.
[ Reply to This | # ]
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Authored by: bigwzl on Tuesday, February 10 2004 @ 06:09 PM EST |
I wonder if SCO's lawyers get paid by the word? Never have so many words been
written to say so little. Is it possible to figuratively tap dance any faster
than that? SCO's whole response ranks right up there with those great responses
of all time like "My dog at my homework", "just 'cus", "I don't recall" and "I
have no recollection of those events, senator".
Was Bill Shakespeare
thinking of SCO when he wrote:
"To-morrow, and to-morrow, and
to-morrow,
Creeps in this petty pace from day to day,
To the last
syllable of recorded time;
And all our yesterdays have lighted fools
The
way to dusty death. Out, out, brief candle!
Life's but a walking shadow; a
poor player,
That struts and frets his hour upon the stage,
And then is
heard no more: it is a tale
Told by an idiot, full of sound and
fury,
Signifying nothing."
[ Reply to This | # ]
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Authored by: blacklight on Tuesday, February 10 2004 @ 06:13 PM EST |
First (continued)
IBM keeps insisting on something that is not part of SCO's claims, <i>so
it should come as no surprise that files or lines of code in System V have not
been identified</i> [My italics]
Counterpoint: SCO was required to identify the lines of code as per Judge Well's
Dec 12 order. Am I detecting flat out contempt of court?
"Moreover, this latest concern is belied by the language in IBM's proposed
order on the Motion to Compel when IBM itself wanted SCO to provide "the
exact location in Unix System V or <b>elsewhere</b> [their
bolding]were [sic] such information is found or expressed. . ." SCO, in
fact, has done so.
So if the allegedly infringing code is not in SysV, then where is it? It remains
the SCO Group's burden to indicate where it is.
Bottom line: if the SCO Group is unable to identify the infringing code and
locate it by line number, and it is unable to describe why and how the code is
infringing, then the SCO Group's allegations are not meeting the "stating
with specificity" standard. And as a result, the SCO Group's lawsuit is not
going to move forward.[ Reply to This | # ]
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Authored by: DF5JT on Tuesday, February 10 2004 @ 06:17 PM EST |
"As to your concern about Darl McBride not having produced “sent' e-mails,
he infrequently sends e-mails. Nonetheless, based upon IBM's comments and the
expectation that there would be at least some sent e-mails, we further
investigated why sent e-mails for others have not been produced. Apparently,
only some of the “sent” e-mails were on the servers of SCO. The sent e-mails for
some executives apparently are not on the server and instead are only located on
their individual machines."
Is this the way CEOs of a NASDAQ listed enterprise handle their business?
Amazing.[ Reply to This | # ]
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Authored by: star-dot-h on Tuesday, February 10 2004 @ 06:23 PM EST |
I'm no constitutional expert and I reside outside of the USA and I'm not even a
US citizen. So can those that know better answer me...
Is SCO claiming that voluntary work is somehow unconstitutional? Given that
voluntary work and charitable acts seem a major part of life, almost an
obligation, in the USA how does this position strike you?[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 06:25 PM EST |
They obviously have a lot of trouble with the words ``identify'' and
``specificity''.
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 06:41 PM EST |
Is there any way we can remove that half page or so of extra space near the
bottom of the article?[ Reply to This | # ]
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Authored by: the_flatlander on Tuesday, February 10 2004 @ 08:19 PM EST |
Very cool table. Nice job!
PJ, the artist asked to remain anonymous? Well three cheers anyway. Hip hip
Hooray!
The Flalander
Geeez, I drove home and had dinner, and *everything* changed by the time I got
back to the computer.
[ Reply to This | # ]
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- Side by Side - Authored by: PJ on Wednesday, February 11 2004 @ 01:31 AM EST
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Authored by: one_penguin on Tuesday, February 10 2004 @ 08:37 PM EST |
------------
(excerpt from Darl's recent Harvard speech)
Then he said that the BSDi settlement was about those same header files, and
they know what is in that sealed settlement and we don't, but there were three
kinds of files addressed in that settlement: files that had to be removed, files
that had to have copyright notices put on them, and files that were ok.
source: http://www.groklaw.net/article.php?story=20040202204801978
-------------
In (8) SCO says: “The pleadings, deposition transcripts and deposition exhibits
from UNIX System Laboratories, Inc. (“USL”) suit against BSD.” SCO does not have
such documents in its custody, control or possession.
-------------
My questions: Is it just me or is there a discrepancy here? They knows what's in
the seal settlement. Yet they don't have any such documents in their custody,
control or possession. How does Darl (they) know what's in the sealed
settlement?
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, February 10 2004 @ 09:02 PM EST |
"(1) “The Linux intellectual property licenses SCO has publicly claimed it
has sold to at least ten companies.” At this juncture, I am only aware of a
license with Computer Associates, Questar and Leggett & Platt. The Computer
Associates document was collected and approved for production, but the third
party vendor being used for this document production did not burn the image on a
CD. We, of course, will produce this document. The remaining documents were
received by the client well after the collection of documents took place and
therefore was not included in the production. We will produce this document as
well."
Well, and we all thought that SCO had made no sales at all. Guess we were wrong,
and we maligned Darl.
Of course 3 sales out of how many thousands of companies using Linux is not a
great track record... Any sales manager that I've ever worked for would fire
them for a bunch of imcompotents.
Wayne
[ Reply to This | # ]
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Authored by: Thomas Frayne on Wednesday, February 11 2004 @ 03:22 AM EST |
We need close comparisons of the statements at the
Feb 6 hearing which are related to each row of the existing table.
Perhaps a table organized as follows:
IBM-letter -------------------|---------------------SCO-letter
IBM-hearing -------|--Judge-hearing -|-----SCO-hearing
with each pair of rows in the new table corresponding to a single row in the
original. That way we'll be able to spot proofs, refutations, inconsistencies,
and judgments more easily.
[ Reply to This | # ]
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Authored by: Turing_Machine on Wednesday, February 11 2004 @ 01:34 PM EST |
I am a licensed Title Producer, and have examined many title reports for
property transfer or mortgage, but I am *NOT* a lawyer, and when I'm confused, I
call one. That being said, I believe I can honestly see the end goal of IBM's
grinding assault against SCO.
In real estate, there are easements and restrictions against property that can
affect the use of that property. An easement being (losely) defined as ongoing
permission for someone other than the land owner to use that land or a portion
of it, or even the air space above it for their own use. A restriction is
(again, losely) defined as a limitation placed upon that land that future owners
must follow. An example of an easement would be the ability for an electrical
company to run a wire from the pole to the house, and not be limited to do this
by a later owner. An example of a restriction would be that a particular piece
of property must never be used for (a personal favorite) bone-boiling, etc.
I think IBM is clearing Linux from any easements and restrictions here, by
having them edjucated. Most states in the Union use a system called Torrens,
which makes a piece of property clean of previous undisclosed easements and
restrictions via public notice and exhaustive examination of the recorded
documents. IBM is looking to gain a Torrens-like judgement that Linux is clean
from this point back, hoping that the GPL will govern from this point forward.
I have a great respect for IBM deciding to do this, since it will allow for a
more concrete definition of at least THIS Intellectual Property, and may provide
a guide-line for cleaning any other Intellectual Property in the future.
I'm not sure this is possible, but the similarities are striking.
Linux and the GPL provide "notice" of their property by displaying the
contents of that same property, allowing for any person or entity to refute
this, as SCO HAD done earlier by claiming ownership of specific portions of that
property.
Again, similar to land, the property may have ancient restrictions and easements
that have followed through the chain of ownership. Just because some person
didn't notify the next owner of those limitations does not negate them. This
speaks to the Novell to OldSCO transaction, and the future transfers.
Please, correct me if I have mis-construed this, but I see IBM making this as
solid and stable as the most stable ownership in this country. I have to
respect their intent. I'm not sure that it CAN be done, but if it can, IBM will
be the one who leads the way.
---
No, I'm not interested in developing a powerful brain. All I'm after is just a
mediocre brain, something like the President of the AT&T --Alan Turing[ Reply to This | # ]
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