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| SCO's Interim Disclosure of Material Misused by IBM - as text |
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Tuesday, November 01 2005 @ 07:30 PM EST
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Here's SCO's Interim Disclosure of Material Misused by IBM [PDF], as text.
Looking at the careful wording, and knowing SCO like we do, I see that they have grouped their findings in two buckets, as Darl once put it, and so what they describe could belong to either bucket: The technology matrix identifies 217 separate technology disclosures which SCO contends are improper, that is, they violate one or more of the contractual prohibitions IBM agreed to with respect to licenses and other agreements governing source code IBM (and Sequent) obtained from SCO's predecessors-in-interest and/or violate SCO's copyrights. So when they list literal code, in SCOland, I suppose that could describe all the code they think was contractually protected under confidentiality clauses, as opposed to what you naturally think it means, namely literal copyright infringment. If it were anyone else, I'd assume the latter, but after the recent discovery battles and SCO's unique interpretation of Judge Wells' orders, I now think we'd best wait until we know precisely what was filed instead of assuming anything. Even though this was sealed, we are very likely to get at least some hints as the process moves forward, either in arguments used, or in interrogatories or answers to them, or if IBM contests this filing staying sealed, at least with respect to the Linux information.
***********************************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
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THE SCO GROUP, INC.
Plaintiff/Counterclaim Defendant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant/Counterclaim-Plaintiff.
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SCO'S INTERIM DISCLOSURE OF
MATERIAL MISUSED BY IBM
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
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1
The SCO Group, Inc. ("SCO") respectfully submits the following Interim Disclosure of Material Misused by IBM in accordance with the Court's Pre-Trial Management order of July 1, 2005.
The Court's Order called for the Parties to identify misused technology with specificity, in an initial report to be filed by October 28, 2005, and a final report due on December 22, 2005. This report indicates the technology that IBM has misused that has been identified to date. The matrix, filed separately under seal as "EXHIBIT 1 TO SCO'S INTERIM DISCLOSURE OF MATERIAL MISUSED BY IBM", which is in the form of a spreadsheet, and the supporting appendices, identify the technology that that been improperly disclosed, where possible who made the disclosure and the manner in which the disclosure was made, the location of the technology in a UNIX derivative or modified product as to which SCO claims proprietary rights, and the manner in which the disclosure has been contributed to Linux. The technology matrix identifies 217 separate technology disclosures which SCO contends are improper, that is, they violate one or more of the contractual prohibitions IBM agreed to with respect to licenses and other agreements governing source code IBM (and Sequent) obtained from SCO's predecessors-in-interest and/or violate SCO's copyrights. Some of these wrongful disclosures include areas such as an entire file management system; others are communications by IBM personnel working on Linux that resulted in enhancing Linux functionality by disclosing a method or concept from UNIX technology, such as Dynix, subject to the restrictions on disclosure in agreements binding upon IBM due to its acquisition of Sequent.
2
SCO's work on identification and refinement of technology issues in dispute is ongoing, as review of documents and deposition of programmers and other witnesses proceeds, together with the work of consultants with technological expertise in UNIX-based operating systems. The present submission, which embraces several thousand pages of material, is substantial, but distilled from an even larger universe of code and related materials. The numerosity and substantiality of the disclosures reflects the pervasive extent and sustained degree as to which IBM disclosed methods, concepts, and in many places, literal code, from UNIX-derived technologies in order to enhance the ability of Linux to be used as a scalable and reliable operating system for businesses and as an alternative to proprietary UNIX systems such as those licensed by SCO and others. IBM has acknowledged -- both internally and externally (e.g., 2nd Am. Comp. ΒΆΒΆ 90-96) that it has sought in this way to infuse Linux with the robustness of AIX and Dynix/ptx, both of which are derivatives or modifications of UNIX System V, and subject to SCO's contractual rights.
SCO is contemporaneously supplementing its prior responses to IBM interrogatorities regarding these technological disclosures.
3
DATED this 28th day of October, 2005.
Respectfully submitted,
HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Robert Silver
Stephen N. Zack
Edward Normand
By: ___[signature]____
Counsel for The SCO Group, Inc.
4
CERTIFICATE OF SERVICE
Plaintiff The SCO Group, Inc. hereby certifies that a true and
correct copy of the foregoing Interim Disclosure of Material Misused by IBM was served on Defendant International Business Machines Corporation on the 28th day of October, 2005:
By U.S. Mail:
David Marriott, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Todd Shaughnessy, Esq.
Snell & Wilmer LLP
[address]
___[signature]____
5
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| Authored by: uw_dwarf on Tuesday, November 01 2005 @ 07:37 PM EST |
| <n/t> [ Reply to This | # ]
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| Authored by: uw_dwarf on Tuesday, November 01 2005 @ 07:40 PM EST |
| The red text below the input box tells you how to make clickable links. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 01 2005 @ 07:41 PM EST |
Well, it's apparently contract related, as previously speculated. They also say
it's huge. 'Twill be interesting to see (hopefully) what it actually entails
(someday), but for now we're still in the dark (sorta, at least)...
Perhaps a rehash of previous claims (likely)? And of course there's still Novell
to consider -- perhaps SCOs efforts will all be for naught, assuming that the
Novell case goes the way we expect.
Larry N.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 01 2005 @ 07:45 PM EST |
On what ground(s) can or would IBM be able to oppose the seal, and how likely is
it that IBM will actually do that? Does the opposing party usually care that
such and such a document is filed under seal? I mean, IBM gets to look it over,
so how would they go about complaining that it was improperly sealed? Can the
Court unseal it of its own accord if they think that sealing it is pointless?
After all the time we've spent with this case, it's kind of a kick in the teeth
to have them mark what might finally be their last shot at stating their
complaints as sealed so we don't even know what they're actually alledging.
True, I know that there's an approximately 0% chance of having any actual meat
in there, but I'd still like to be able to pick over whatever pitiful,
fossilized bones they might've unearthed :)[ Reply to This | # ]
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| Authored by: Steve Martin on Tuesday, November 01 2005 @ 07:50 PM EST |
The technology matrix identifies 217 separate technology
disclosures which SCO contends are improper, that is, they violate one or more
of the contractual prohibitions IBM agreed to with respect to licenses and other
agreements governing source code IBM (and Sequent) obtained from SCO's
predecessors-in-interest and/or violate SCO's
copyrights.
Two things kinda jump out at me on reading
this:
1) The first impropriety mentioned is related to source code "IBM
... obtained from SCO's predecessors-in-interest". Seems to me that has to be
System V code, rather than any code IBM wrote. We're back now to claiming that
IBM misused System V code, despite IBM asking for two years exactly
what System V code is at issue, and TSG claiming it wasn't about System
V.
2) The second impropriety considered here seems to be that the code
at issue possibly violates TSG's copyrights. As far as I know, the only code TSG
might conceivably hold copyrights on would be their own TSG-written code (in
UNIXware) or, if you believe their position in Novell, System V code. Thus, I
wonder two things: (a) if UNIXware code is at issue, are we back to litigating
Monterey again, and (b) if System V, why (once again) hasn't TSG after
two-and-a-half years identified the exact System V code at issue?? (And if it's
System V code, why did they need AIX and Dynix back to the dawn of time to find
it?)
---
"When I say something, I put my name next to it." -- Isaac
Jaffee, "Sports Night" [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 01 2005 @ 07:51 PM EST |
From reading this, it appears that SCO's arguments are primarily with regard
to the contract IBM has with AT&T, and the "disclosure" of methods
and
concepts. There's a part about SCO's copyrights as well - but, of course, this
is strongly under dispute.
1. SCO cannot prove it has copyrights to any part of Unix. Novell sued SCO
on this matter. There are no transfer of copyright documents. Thus SCO's
arguments about copyright are moot.
2. On the matter of contracts, interpretation of the contract will be a matter
of law. Thus Judge Kimball can decide on this matter for himself rather than
having to send it to a jury. When it comes to the interpretation of the
contract, IBM has a huge, insurmountable, advantage - including testimony
from people who were involved with it's contracts with AT&T and Novell and
Santa Cruz.
3. On the matter of contracts, SCO itself cites the contracts, but does not
follow it's obligations under the contract - which are in fairly plain English -
such as in following Novell's instructions to end its lawsuits against IBM. Of
course IBM cites that as one example for its side.
4. On the matter of methods and concepts - there are no trade secrets nor
patents involved in the lawsuit now. SCO has none. Unix System V has no
secret methods and concepts. These have been disclosed by AT&T, and much
has been in the public domain or was obtained from BSD Unix.
5. Looks like SCO still has no specific Linux code. They apparently describe
how Linux is enriched - by the methods and concepts - but with no specific
lines from Linux itself.
Hah.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 01 2005 @ 07:52 PM EST |
Why isn't IBM simply invoking the Novell nuclear weapon here? If this is a
contractual matter (and it appears to be), then Novell have the right to waive
any claims made by SCO, which they did. So, why don't IBM simply point out to
the judge that whatever SCO's claim may be, it's all going to be irrelevant
anyway, because Novell trumps anything SCO may have said.
Or are IBM just being thorough and will use all weapons in their arsenal before
going nuke?[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 01 2005 @ 08:52 PM EST |
Surely SCOX cannot believe that this tired, old "methods and concepts" line
of reasoning is going to last more than a day before it's demolished beyond all
recognition.
[ Reply to This | # ]
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| Authored by: sk43 on Tuesday, November 01 2005 @ 09:43 PM EST |
| their claimed infractions include the infamous PCMCIA "rare words", such as
"RegisterClient" and "SetEventMask", that they found using the legendary
patent-pending "system for software code comparison" and that they claim were
"re-factored" from AIX into Linux.
[Details
here (check out
"Specification")].
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, November 01 2005 @ 09:57 PM EST |
This statement just jumped out at me in the description of the sealed document.
"the location of the technology in a UNIX derivative or modified product as
to which SCO claims proprietary rights"
This implies that either SCOX have failed to identify with specificity what code
in System V has been infringed, or more likely that we are back to the old
"all your code belong to us" theory that we have seen repeatedly in
prior filings.
mrpaul[ Reply to This | # ]
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| Authored by: GLJason on Tuesday, November 01 2005 @ 11:13 PM EST |
Is this just going to be another thing like 'JFS Infringes on our rights and/or
methods and concepts'? If they don't go into more detail, like WHAT copyright,
or WHAT method or concept they think is protected and how the code infringes it,
I hope the judge gives them a quick backhand![ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 02 2005 @ 03:58 AM EST |
Once again SCO has blown a bunch of smoke when ordered to provide specificity.
Same old same old we've seen before.
Now they'll get until Dec. 22 to diddle around some more, then they have to come
up with yet another way of saying "sorta kinda maybe".
Although, I'm sure IBM is happy with it. It may take way too long, but it'll be
a slam dunk when discovery finally ends.[ Reply to This | # ]
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| Authored by: geoff lane on Wednesday, November 02 2005 @ 04:32 AM EST |
Has anybody found anything significant about the number 217?
Apart from it being 7x31 I can't see anything :-)
---
I'm not a Windows user, consequently I'm not
afraid of receiving email from total strangers.
[ Reply to This | # ]
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| Authored by: DaveJakeman on Wednesday, November 02 2005 @ 06:15 AM EST |
(Picking myself up after rolling on the floor laughing)
This universe, as we know it, comprises matter, energy, space and time. Yet in
SCO's version of reality, there is a whole universe of code. Poor SCO. Now we
know what it's like to be mad.
Not that they might be exaggerating or anything.
---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 02 2005 @ 07:11 AM EST |
This line really caught my eye:
"... it has sought in this way to infuse Linux with the robustness of AIX
and Dynix/ptx, both of which are derivatives or modifications of UNIX System V,
and subject to SCO's contractual rights."
So now the SCOGgers are claiming that it is improper to attempt to make another
product as good as theirs??? Simply trying to make Linux as reliable as Unix?
That's like GM suing Ford because they put a better tyre on the Mustang...
Colin, not logged in.[ Reply to This | # ]
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- Dynix - Authored by: DebianUser on Wednesday, November 02 2005 @ 09:51 AM EST
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| Authored by: Anonymous on Wednesday, November 02 2005 @ 07:55 AM EST |
I guessing here but I think what SCO have is a list of similar looking lines of
code in SysV and Linux/Dynix/Aix. This is but one step in the
abstraction/filtration/comparion test that this circuit uses.
What SCO have move directly to would appear to be the comparison stage. It seems
unlikely that they have peformed the filtration stage - removed those parts that
are public domain (ie of Berkely origin) or written and owned by Sequent or IBM
or those parts of SysV that IBM and Sequent were entitled to use under thier
AT&T contract.
If this hypothesis is correct - which I emphasise I dont yet know - this would
appear to be an abuse of process. The parties to a court case are supposed to do
this work before presenting it to the court.
As I have said I and most of here here dont know what was in the SCO filing. But
given the paucity of relevent material presented up to now by SCO and this new
substantial filing my suspicions are aroused.
--
MadScientist [ Reply to This | # ]
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| Authored by: Steve Martin on Wednesday, November 02 2005 @ 08:15 AM EST |
(with apologies to Elton John...)
PACER shows that TSG followed up their initial filing. Docket 545:
"**SEALED DOCUMENT**APPENDIX VOLUMES I THROUGH X to [544] Sealed Document -
Exhibit 1 to SCOs Interim disclosure of Material Misused by IBM filed by
Plaintiff SCO Group. (CLERKS NOTE: These Appendixes are oversized (not scanned)
and housed in 5 bankers boxes. They will be retained in the courts sealed room.
They were also filed on disk for the use of the Judges Chambers) (blk, )
(Entered: 11/01/2005)"
Five bankers boxes of oversized paper? Wow! Kimball's gonna love looking at
that!
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 02 2005 @ 08:52 AM EST |
Since SCO is now claiming copyright and there is no clear title.. They will get
to the end of discovery and say that they need to settle Novell's case first...
2 years of discovery there and then they can restart IBM if they win.. (big IF,
Huge IF)[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 02 2005 @ 08:58 AM EST |
Any comments on the following method for IBM to disclose at least some of
what's been filed under seal?
- We can assume that a proportion
(possibly a large proportion) of the "infringing" code made its way into
released versions of Linux. I know there's the possibility of SCO moaning about
code submitted that was rejected, but I doubt they'd get too far if
all their claims were about this.
- IBM state the set of their
contributions to Linux, referencing a publically available resource such as
MARC, or CSETS or patch references for those changes that are pre-BK or
git).
- IBM then state the subset of contributions that they do not believe
(having seen the documents filed under seal) are disputed by SCO.
- We
perform a simple piece of subtraction, and arrive at the code that SCO are
claiming ownership/pimping rights/who's-your-daddy-dom over.
Any
thoughts?
-- jc [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 02 2005 @ 09:07 AM EST |
"such as an entire file management system"
I just guessing JFS.[ Reply to This | # ]
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| Authored by: Jaywalk on Wednesday, November 02 2005 @ 12:14 PM EST |
The technology matrix identifies 217 separate technology
disclosures ... they violate one or more of the contractual prohibitions ..
and/or violate SCO's copyrights ... IBM disclosed methods, concepts, and in many
places, literal code, from UNIX-derived technologies ... The
first thing that the Nazgul are probably going to look for is resubmitting the
PSJ as soon as discovery ends. I'm willing to bet that the matrix throws
"methods and concepts" in with "literal code" without making any distinction as
to which is meant. Note the "and/or" weasel words around the mention of
copyrights. SCO still wants the copyright infringement claims to survive until
trial. IBM -- as we saw in the PSJ -- wants them thrown out. SCO is hoping to
make vague references to "their" copyrights in order to confuse the issues for
the jury, while never explicitly pressing a copyright claim. IBM wants to
remove that element entirely and focus solely on the contract, reducing the
question to one of whether IBM really was stupid enough to sign a contract that
gives someone else ownership of code IBM wrote.---
===== Murphy's Law
is recursive. ===== [ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, November 02 2005 @ 01:18 PM EST |
They are lame enough to even mention "an entire file system" (jfs),
which is not at all a UNIX derivative, even by the most liberal interpretations
of that word.
And apparently, they still have no intent of following normal procedures when it
comes to identifying derivative works.
[ Reply to This | # ]
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| Authored by: Pop69 on Wednesday, November 02 2005 @ 05:11 PM EST |
Aren't the likes of UNIX methods and concepts taught as part of programming
degrees and have they not been for about the last 20 years ?
How can anybody claim that UNIX methods and concepts have some sort of
commercial value when a whole generation of OS programmers have been taught them
at university ?[ Reply to This | # ]
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| Authored by: rc on Thursday, November 03 2005 @ 11:53 AM EST |
| I'll go out on a limb and think out loud here
Ok, so it was, what, 24
boxes?
Lets see, how many sheets are in a box of greenstripe paper? (anybody
still remember greenstripe? ;-)
For the sake of argument, lets say 5,000
sheets (but I think it might have been 7500 to 10,000)
Assuming 50 lines per
page, that's 55 * 5,000 * 24 = 6,600,000 lines
Lets assume for a moment that
they simply printed large parts of Unix or Linux or AIX - what percentage of
those would that be?
(and why do they then say 217 areas? That seems very
strange - 24 boxes covering 217 areas means around 10 areas per box! Must be
some pretty BIG areas!)
(Note - I'm running these numbers from memory,
especially that 217 number, so sorry if I'm completely off)
rc
[ Reply to This | # ]
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