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Caldera Government Linux Business The Courts News

SCOrched Earth 436

Posted by michael
from the caldera-delenda-est dept.
mm0mm writes "Just hours after we read Darl's open letter on copyrights, Groklaw has another breaking update on SCO up on their website. SCO's Reply Memorandum of Law in Support of its Motion to Compel Discovery is now available. (original document here) The memorandum requests court to order IBM, the defendant, to provide evidence and support their case against ....IBM. :D When I was young, it was the plaintiff who was responsible for preparing enough evidence to present to the court, but in Darl's world, with army of lawyers who will be given 20% of the proceeds from the settlement or of 'a sale of SCO during the pendancy of litigation', apparently rules are different." Lawrence Lessig has a great piece reviewing Darl's nonsensical letter.
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SCOrched Earth

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  • Hmmmm (Score:5, Funny)

    by Kulaid982 (704089) on Friday December 05, 2003 @11:17AM (#7639172)
    Here's the gun I want to shoot you with, will you load it for me?
  • by rkhalloran (136467) on Friday December 05, 2003 @11:18AM (#7639181) Homepage
    Kinda cool to see a reference to a Groklaw URL in IBM's filing. At least ONE of the legal teams knows where to look.

    SCO's team, on the other hand, probably starts chewing the rug everytime there's an update...
    • by Jeremiah Cornelius (137) on Friday December 05, 2003 @11:29AM (#7639282) Homepage Journal
      I wish someone would deliver something like 32 tons of horse shit to th SCO offices. Just DUMP it in front of the swinging glass doors.
    • by Red Pointy Tail (127601) on Friday December 05, 2003 @12:08PM (#7639665)
      Actually, is IBM confident of winning? Why wouldn't they idemnify their customers?

      Just tinfoil hatting a bit, but could IBM use this opportunity to badly hurt HP, their nearest competitor?

      We all know HP has idemnified their customers on linux. Now, if IBM were to strike a clandestine deal with SCO, and 'confessed' that they have (God forbid!) leaked code into Linux, then it will strengthen SCO's claim on the ownership of Linux. And HP will be forced to pay a very damaging liability... while IBM quietly settles it out of court. Even if IBM have to pay loads, it would be a big calculated whammy to HP....
      • by gmack (197796) <gmack&innerfire,net> on Friday December 05, 2003 @01:21PM (#7640386) Homepage Journal
        Because the moment they offer that it makes the smaller shops an easy pawn for SCO. They could just sue one of the smaller shops and force IBM to either divert resources or risk them getting a less competant legal staff and having to pay a settlement.

        As for your tin foil hat theory INAL but if IBM were to do what you say and secretly settle with SCO then anyone forced to fork out a licence fee would have to take a look at the company that put the code there to retreive their damages. HP would probably get the damages etc right back from IBM in court.

        IMO their behavior amounts to a bit of short term pain for the long term gain of reminding people why no one in their right mind sues IBM.

        And hay.. if this finally gets the GPL court tested the rest of us may come out winners as well as it will remove a rather popular target to throw FUD at.
      • by mcc (14761) <amcclure@purdue.edu> on Friday December 05, 2003 @01:40PM (#7640568) Homepage
        Just tinfoil hatting a bit, but could IBM use this opportunity to badly hurt HP, their nearest competitor? ...

        OK, this is a misconception I keep seeing, and I would like to clarify.

        IF SCO code is inside of Linux, it is NOT LEGAL for ANYONE to distribute Linux until the SCO code is removed.

        If SCO code is in Linux, SCO doesn't own Linux. They just own the bits of code they own; the entire REST of the linux kernel still belongs to the individual authors.

        The individual authors have only agreed to let the bits of code they own be released under the GPL. The GPL says that if you distribute GPLed code, you MUST be able to state that ANYONE will be able to redistribute the code with NO extra limitations besides those of the GPL (with the only exception being that people *may* be prohibited from distributing into countries where the code is illegal under local laws).

        So: IBM *cannot* just settle out of court with SCO and continue on while HP gets whacked. If IBM gains the right to distribute the hypothetical SCO portions of the kernel, then HP automatically gains the right as well. And if HP does not gain that right, then that means *IBM does not have the right to distribute Linux at all* because they would be violating the license rights of every single kernel contributor EXCEPT SCO [and themselves].

        In fact, it would mean that until that limited, GPL-incompatible SCO code is removed, *no one* would be able to distribute Linux legally. This is the problem. SCO can *never* collect license fees for any hypothetical code it has in Linux, from IBM, HP, or anyone else, because the instant that code is revealed to be real, it must immediately be removed from Linux, period.

        Now, once it is removed, SCO could try to claim damages from HP for the time its code spent in Linux, but between the fact that in this hypothetical case 1) HP would be an unknowing transgressor and 2) HP was using code that IBM had in apparently good faith presented to HP as being owned by IBM, HP could brush off any lawsuits easily. When you add the 3) problem SCO failed to mitigate damages at all and 4) SCO very probably *granted* HP an unlimited GPL license to distribute SCO's "poisoned" code by distributing Caldera, HP would be able to laugh such a case out of court even more easily than IBM is going to laugh the current contract-based case out of court.

        (And of course, all of this assumes SCO's "stolen" code is real. I see no more or less reason to take such an idea seriously than I see a reason to believe the works of H.P. Lovecraft are actually true.)
  • Doh! (Score:2, Funny)

    by lordsilence (682367)
    What a surprise... soon we'll have to go sign-up ourselves for those appearently illegal copies of GNU/Linux which we run on our machines.

    Oh wait, FRITZ will do that for us. Thanks Microsoft!
  • by Anonymous Coward on Friday December 05, 2003 @11:19AM (#7639197)
    [IBM] I plead the fifth! [SCO] You can't! We need your testimony to prosecute you!

    .. It's not entirely accurate to what's happening, but it's an interesting comparison - and an ironic one - to SCO attacking GNU for being against the US Constitution.
    • Relying on the 5th in a civil action is certainly permissible: no person is required under any process of law to give testimony that may incriminate him. Incrimination in this sense, however, only means that you would be subject to a criminal prosecution, and not that you would be subject to liability.

      Sometimes, a defendant faces both -- a civil action may seek damages for conduct that, in fact, is criminal. A defendant could, at least in theory, refuse to answer a question on fifth amendment grounds to
  • where any semblence of sense has gone out the window. Attempting to get a court order forcing IBM to self-incriminate? If SCO were a human it would be able to plead insanity in the countersuit. :p
  • Soon to be decided (Score:4, Interesting)

    by x-router (694339) <richard.x-router@com> on Friday December 05, 2003 @11:20AM (#7639204)
    They are in court at this moment sorting this out.

    Hopefully the judge will take one look at this this [groklaw.net] and ask SCO exactly why they arn't prepared to say what they have on IBM.

    • by Zeinfeld (263942)
      The IBM motion to compel filed earlier is interesting:

      Specifically, IBM has alleged that SCO has, among other things, violated the Lanham Act by misrepresenting its ownership rights in Linux, tortiously interfered with IBM's prospective economic relations by making false and misleading statements to IBM's prospective customers concerning Linux, and engaged in unfair and deceptive trade practices by publishing false and disparaging statements about Linux. As it has used the specter of all its supposed right

  • SCOrched Earth (Score:3, Interesting)

    by Orien (720204) on Friday December 05, 2003 @11:21AM (#7639210)
    Did anyone else get excited when they saw that tag line? I love Scorched Earth, the mother of all games! There is actually a 3D multiplayer version now that I like very much.
  • by Darth_Foo (608063) on Friday December 05, 2003 @11:22AM (#7639225) Homepage
    Sorry to break it to everyone but it works that way for both sides under the federal (and most state) rules of civil procedure. Each side is entitled to request information and materials from the other. If you decline to provide the requested information or material (documents, etc.), the requesting party has the option to ask the Court to force disclosure. You have to have a pretty good reason (usually some kind of legal privilege) to justify noncompliance or you risk sanctions (like monetary fines or the Court making a factual finding against you or perhaps even dismissing your case). However, the rules are the same for both parties and even though SCO is the "Bad Guy" here, don't forget IBM can do the same if SCO fails to comply with THEIR discovery requests.
    • by Anonymous Coward on Friday December 05, 2003 @11:36AM (#7639354)
      That's all well and fine for specific evidence. But it's a bit different when they ask IBM
      to do things like "support their case against [IBM]". They can't force IBM to do the
      research/build their case for them because they refuse to disclose what specific sections
      of code are in violation.
    • by pubjames (468013) on Friday December 05, 2003 @11:41AM (#7639403)

      But isn't there a problem with this?

      Say I am a fizzy drinks manufacturer. I want to know what Coca-cola's secret formula is. I start a case against them saying that they've copied my formula, and that they have to give me their formula so I can prove it.

      I would imagine source code is esentially a trade secret. A competitor has asked IBM to hand over their trade secrets, because they may have copied theirs. Doesn't seem right to me. If SCO cannot provide some other proof that copying has occurred - for instance, evidence from an IBM employee - then I don't think they should be allowed to see IBMs trade secrets.
      • by Abcd1234 (188840) on Friday December 05, 2003 @12:09PM (#7639670) Homepage
        This is a non-issue. If IBM were forced to release trade-secret material during discovery, those court documents may very well be sealed at the end of the trial (or, at least, that material may be excised). Moreover, if SCO tried to leverage trade-secret material after the fact, IBM could take them to court for trade secret violations.

        So, no worries... the legal system has considered these things. :)
        • The legal system has not considered FUD, IMNSHO. Until you believe that this entire mess is all about FUD, you're missing the BP (Big Picture). At best, it's about FUD.

          But actually, it is about *Control* and lack of freedom. And control is won historically by propaganda, and today's modern propaganda is FUD. SCO is on a mission to drag this mess out as long as possible and generate as much FUD as possible. So, IBM could take them to court for trade secret violations. What would IBM gain? From SCO? SC

      • by rkhalloran (136467) on Friday December 05, 2003 @12:11PM (#7639702) Homepage
        That's one of the ludicrous things in this case: the trade-secret laws say once it's out in the open, it's no longer a trade secret. You can sue for damages for revealing it, but you can't put the genie back in the bottle. But SCO, after offering source for years, is now trying to claim trade-secret protection on this as-yet-undislosed code.

        Groklaw pointed out the other day that for years, the AT&T Unix code had *NO* copyright notices for just this reason - they were trying to protect it as trade secret. It was only after the breakup when they were trying to 'marketize' it that the "THIS IS UNPUBLISHED SOURCE CODE OF AT&T" comment blocks went in.
      • by jonblaze (140753) on Friday December 05, 2003 @12:32PM (#7639904)
        Say I am a fizzy drinks manufacturer. I want to know what Coca-cola's secret formula is. I start a case against them saying that they've copied my formula, and that they have to give me their formula so I can prove it.

        Ah, then you'll want to read Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288 (D. Del. 1985). There, the court held that Coca-Cola's secret formula was not immune to discovery once the plaintiffs had made a showing of "relevancy" and "necessity." Of course, this did not mean that Coke's secret would then become a matter of public record. Courts have the power to issue protective orders under Federal Rule of Civil Procedure 26(c) to limit the dissemination of information procured through discovery. The court deferred ruling on the scope of such a protective order until the parties had time to consider and negotiate the issue.
      • by werdna (39029)
        First of all, its no big deal as to trade secrets. The court can enter a protective order, and in cases between competitors, can require that the discovery be "for attorney eyes only," not to be sent to the clients. Clients don't get them either, because lawyers who unlawfully disclose such matter not only lose their ticket to practice, but virtually every penny they have in the underlying civil action.

        Any right to use the secret at trial is within the Court's subsequent discretion. Trade secrecy is NOT
      • Say I am a fizzy drinks manufacturer. I want to know what Coca-cola's secret formula is. I start a case against them saying that they've copied my formula, and that they have to give me their formula so I can prove it.

        Can you lay a proper foundation for your request? Does your product predate Coke? Did Coke's product change from something else to something that is close to your product? You do have to make a plausible argument for your claim that Coke stole your formula. In the case of trade secrets,

    • by khasim (1285) <brandioch.conner@gmail.com> on Friday December 05, 2003 @11:46AM (#7639449)
      IANAL

      You cannot request EVERYTHING. The stuff you request has to apply to the case.

      That's why it shouldn't matter what IBM has in versions of AIX that were NOT released.

      As for the stuff about demanding that IBM identify all the code it contributed to Linux........

      That is what SCO originally claimed. SCO says that IBM contributed code that IBM did not have the righ to contribute without SCO's permission.

      Now SCO is demanding to see the code that IBM contributed.

      This is what is known as "Fishing". You demand EVERYTHING and hope to find SOMETHING that is actionable. And "Fishing" is not allowed.
      • by Darth_Foo (608063) on Friday December 05, 2003 @12:20PM (#7639788) Homepage
        IAAL . . . (although I'm probably not licensed in your jurisdiction) ;-) You can discover ANYTHING which is admissible or REASONABLY CALCULATED TO LEAD TO ADMISSIBLE EVIDENCE, subject to only a few areas privileged agaist discovery (e.g., attorney-client communications). That means that "fishing" IS de facto allowed, subject to the rules of evidence (which are pretty damned liberal). In complicated cases it often comes down to exactly what is going on here: the trial court judge is asked to rule on what is and is not to be handed over. The Coke Formula analogy above is not a good one because courts can (and often do) allow discovery of trade secrets but subject them to protective orders limiting who has access to the material, how it is to be distributed and copies, how it is to be handled (returned or destroyed, usually) after the litigation, etc.
    • While your general point is correct, you seem to be missing an important fact. Discovery is not a fishing license. When you request information you have to do so in a specific manner. SCO, on the other hand, is basically saying "give us everything you think might incriminate you". There's nothing specific about that request, and IBM has rightly refused to comply with it unless and until they specify what it is they're looking for.

      There are 2 reasons why IBM is right to refuse in this case. The first is that, in essence, SCO is demanding that IBM make their case for them. Under no sane theory of law is it the defendant's job to prepare the plaintiff's case.

      The second is that such a non-specific request places an unreasonable burden on the side which is to supply the information. Just think of the mountain of documents a company as big and as old as IBM has, then think of being that guy that has to go through every one of them looking for anything that might, even in the vaguest way, be related to the case. Now think how much easier that job would be if they were asking for something specific.

      SCO is treating discovery like a fishing expedition in which they have no idea what they might catch, or even if there is anything to catch at all. There's plenty of legal precedent that says that's not OK.

    • by stewball (83006) on Friday December 05, 2003 @12:11PM (#7639696)
      Confession: I am a lawyer

      That's true as far as it goes. Most of the costs of large-scale litigation are related to discovery, and endless and vitriolic fights about what will and won't be allowed in. EVERYONE starts out with the everything-under-the-sun requests, and then, at a cost of tens of thousands of dollars, and months and months of time it gets winnowed down to the at-least-marginally-relevant.

      And as far as the Coca-Cola recipe example, there's a whole subset of fights (and procedural rules) about whether trade secret information can be discovered, and under what conditions, etc., etc. Those fights are the nastiest fights in most lawsuits between technology corporations. I could dig up the Federal and CA state rules on that, but I think everyone would rather I didn't.
    • by TrentC (11023) on Friday December 05, 2003 @12:18PM (#7639772) Homepage
      However, the rules are the same for both parties and even though SCO is the "Bad Guy" here, don't forget IBM can do the same if SCO fails to comply with THEIR discovery requests.

      "If" they fail to comply? SCO filed their Motion to Compel after IBM filed theirs.

      IBM is annoyed because, among other things, IBM requested SCO's source code and a description showing what files and parts of files have been copied, in a form making it amenable for searching. SCO responded by printing out large chunks of Linux source code files and effectively said "it's in there, somewhere". (And then had the gall to complain about how much it cost them to print out that code!)

      SCO filed their Motion to Compel Discovery in response and are basically saying "Well, we can't know for sure what infringement has occurred until we see the code from IBM."

      On one hand, SCO claims in the media to have solid evidence of "line-by-line copying" of "millions of lines" of code, that discovery is progressing along and they're preparing to sue Linux end customers and bill Linux users, making them sound like an unstoppable legal juggernaut (and sending their stock price through the roof).

      On the other hand, in the courtroom, they hang their head and say "we're not sure what all has been done to poor poor us", they whine about having to conduct three lawsuits at once -- their suit against IBM, IBM's countersuit, and Red Hat's suit -- and try to play one case off on the other and file delay after delay in all three cases, stalling for as much time as possible before they have to admit that, they have no case, no proof ,and no claim.

      Groklaw is an amazing read. PJ is smart, she's thorough, and has a great body of volunteers helping her with research into SCO's claims, transcribing legal documents, and tracking down old emails and newsgroup postings. Comparing what SCO says in the media to what they say in court, it's obvious that Darl McBride has a reality-distortion field [catb.org] that makes Steve Jobs' look like a weak soap bubble.

      Jay (=
      • it's obvious that Darl McBride has a reality-distortion field [catb.org] that makes Steve Jobs' look like a weak soap bubble.

        The difference is that Steve Jobs actually makes people believe what he says. No one believes Darl. At this point if he says the sky is blue, I'm going to have to double check him on that.
  • by rice_burners_suck (243660) on Friday December 05, 2003 @11:23AM (#7639233)
    Darl McBride: The Most Dangerous Man in the Technology Industry(1). There was an article in the Nov. 24, 2003 issue of InformationWeek.

    Here is my favorite quote from that article:

    But McBride, a self-described cowboy, isn't about to back down. He once had his administrative assistant return the call of someone who challenged McBride to a fight--to get a time and place. "We have developed thick skin," he says.
    My comments on that quote: I'd be willing to bet that whoever challenged Darl to a fight would have actually done it, but Darl, upon finding out that he was about to get his ass kicked, chickened out.

    What do you think?

    (1) These were some of the words off the magazine's cover. The entire title is: "Is SCO Group's Darl McBride THE MOST DANGEROUS MAN in the technology industry? With a lawsuit imminent, Linux users are about to find out.

    --
    Reference: "You May Be Next" by John Foley, InformationWeek, Nov 24. 2003, pp 20-22.

    $CO sux0rz!! Linux r00lz!!

  • by Target Practice (79470) on Friday December 05, 2003 @11:23AM (#7639236)
    Could someone with financial background tell us if this is related to SCOX waiting to report their earnings [forbes.com] for another two weeks?
    Any correlation? How would these moves affect their reports?
    *dons tinfoil hat*
  • Scorched Earth [classicgaming.com]. I guess I need to look at the article sections closer. Tell you what, though - if someone created a modern, online multiplayer version of Scorched Earth (like Worms is, but with the traditional tanks), it would make for ten times more interesting an article than this "SCO's on crack" ad naseum.
  • SCOdot (Score:4, Insightful)

    by jcrosby (42052) on Friday December 05, 2003 @11:26AM (#7639256)
    I have a question for all of you...

    Since cases that do actually make it to trial take about two years, are we doomed to seeing everything out of McBride's mouth, everything on Groklaw, and every other passing thought about SCO for the next two years on slashdot?

    I've been a member for a long time, and the content seems to be degenerating into a groupthink zealot factory with its own set of dogmas and censors.

    This is a real question to this community so please don't join the groupthink mass and moderate this as flamebait just because it goes against the hive mind around here.

    Thanks.
    • Re:SCOdot (Score:5, Informative)

      by RocketSHE (686478) on Friday December 05, 2003 @11:34AM (#7639331)
      Suggestion for parent: Go to your slashdot preferences and filter out caldera stories. You will never have to see mouse-ears-on-a-globe again. As for me, bring 'em on!
    • Re:SCOdot (Score:4, Interesting)

      by mattgreen (701203) on Friday December 05, 2003 @11:37AM (#7639357)
      I've been a member for a long time, and the content seems to be degenerating into a groupthink zealot factory with its own set of dogmas and censors.

      Truer words haven't been spoken. Every slightest rant (no matter how small or insignificant the speaker is) against (insert holy technology here) is put on the front page for all to read and publically decry, but then every move by (insert evil entity here) is also posted so we can all rehash the same arguments again and again and complain that (far superior technology) is not number one.

      Anyone know of a more balanced news site? I'm getting tired of reading about how Open Source will change the world every day and why I should convert my manager.

    • Re:SCOdot (Score:5, Interesting)

      by h00pla (532294) on Friday December 05, 2003 @11:41AM (#7639396) Homepage
      I've been a member for a long time, and the content seems to be degenerating into a groupthink zealot factory with its own set of dogmas and censors.

      I don't think this is the fundemental problem. This case needs to be talked about rationally and I think Groklaw (and in a way Slashdot) are providing a forum for this.

      The problem to me is that SCO is obviously using the publicity to their advantage, both bad and good. Every time SCO is mentioned in the press, for good or ill, their stock starts climbing. And that's clearly what they are after. Everybody, including McBride, Yarro and their minions know the case is a fraud, but while the stock keeps climbing, it doesn't matter to them.

      What we need to avoid is to talk about SCO just for the "tabloid" value inside the Linux community. You may have a point that some of this discussion borders on that, but as long as we keep to the purpose of revealing SCO's true intentions, then talking about SCO here is a good thing.

      • Re:SCOdot (Score:5, Insightful)

        by SubtleNuance (184325) on Friday December 05, 2003 @12:03PM (#7639615) Journal
        I've been a member for a long time, and the content seems to be degenerating into a groupthink zealot factory with its own set of dogmas and censors.

        I don't think this is the fundemental problem.


        Actually, the rise of the internet and ease of publishing in general, this *is* a problem.

        People will seek out sources of information that *reinforce* their world-view. We will build these feedback loops and vertical chimneys where every group becomes more isolated from reasonable, objective opinion that they become convinced that anyone who disagrees with them is grossly misinformed and stupid.

        I dont know what to do about it, I find myself reading websites and books that really just reinforce my own ideas.... in time, Idont know what the consequences of this behaviour will be. Polorization? Extremism? Where, how and who will faciliated comprimise and understanding?
    • Re:SCOdot (Score:3, Insightful)

      by jay_umd (727212)

      Since cases that do actually make it to trial take about two years, are we doomed to seeing everything out of McBride's mouth, everything on Groklaw, and every other passing thought about SCO for the next two years on slashdot?

      It seems to me that SCO has almost outlived it's fifteen minutes of slashdot fame... It seems to me that the reason that SCO stories constantly pop up on slashdot and continue to attract comments is not because their legal actions are particularly interesting, or particularly stupid

    • by s20451 (410424) on Friday December 05, 2003 @12:06PM (#7639641) Journal
      I've been a member for a long time, and the content seems to be degenerating into a groupthink zealot factory with its own set of dogmas and censors.

      Memo to moderators: Please stop moderating the same tired, old SCO-bashing posts or conspiracy theories as insightful or interesting, because they are neither. (I agree with the parent.)

      In particular, do not promote any post whose content is basically "Darl is going to jail", because these posts are wrong. No SCO executive will do jail time, because it is not illegal to be a jerk. If you need further evidence that nobody is going to jail, consider that David Boies is now up to his neck in SCO. He may tiptoe on the fine edge of what is legal, but he's a smart enough lawyer not to go over.
    • Re:SCOdot (Score:5, Funny)

      by Pike65 (454932) on Friday December 05, 2003 @12:41PM (#7639984) Homepage
      Since cases that do actually make it to trial take about two years, are we doomed to seeing everything out of McBride's mouth, everything on Groklaw, and every other passing thought about SCO for the next two years on slashdot?

      Darl speaks out of his mouth?

      Well you learn something new every day . . .
  • by Asprin (545477) <(moc.oohay) (ta) (dlonrasg)> on Friday December 05, 2003 @11:27AM (#7639265) Homepage Journal

    Check out this snippet from the footnotes at the end:

    [1] Object or binary code is the code computers use and appears as a series of is and Os.

    Someone please explain to SCO's attorneys that:
    i != 1
    and
    O != 0

    Don't they have ANYONE in their office who knows enough about computers to proofread this stuff?

    • by pb (1020) on Friday December 05, 2003 @11:41AM (#7639397)
      SCO probably doesn't, but in this case the fault probably lies with the OCR software and proofreading skills of some Groklaw-loving linux user; the original PDF looks fine.

    • Pardon me for answering my own post, but this continues to dumbfound me.

      SCO is represented by attorneys who are arguing a suit over source code copyright infringement who do not understand computers well enough to correctly identify binary digits. It's bad enough that this wasn't caught by a proofreader and ended up in a document filed with the court; but even worse, SOMEBODY TYPED THAT IN TO BEGIN WITH! My guess is that someone googled a definition of binary code and misread the text of the definitio
  • I think it is high time for legislation that would remove tax deductions for high executive salaries and stock perks(say as measured by a multiple of the national and/or company median-and make it a non-revenue measure and just use the funds to increase the personal deduction).
    What it seems like is that there are some CEO's that will say anything for money-and they are gradually destroying the United States.

  • by johnjones (14274) on Friday December 05, 2003 @11:30AM (#7639292) Homepage Journal
    So

    are IBM going to have to show they did not do anything wrong or is SCO got to prove it ?

    JJ
  • Well.... (Score:3, Interesting)

    by herrvinny (698679) on Friday December 05, 2003 @11:32AM (#7639305)
    I saw the previous /. posting when it came up (doing some homework for Latin late at night) and I immediately took the liberty of taking scoletters.com and scoletter.com. I'm hoping to post a huge rebuttal to everything Darly says. See my sig for more anti SCO stuff.
  • by Anonymous Coward on Friday December 05, 2003 @11:34AM (#7639326)
    God forbid any /.er say anything in opposition to Lessig's argument, but even Darl McBride should be quoted correctly. Lessig writes:

    McBride's argument is grounded in the Constitution. (Well, close to the constitution. He quotes the text of the constitution to be:

    Congress shall have Power [t]o promote the Progress of Science and useful Arts, open-source advocates argue against copyright and patent laws, and whatever measures they take to by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    Actually, the framers didn't say anything about "open source advocates.")

    I only found the pieces that make up McBride's quote in his letter, not the whole thing in a single sentence. He has to at least quote the guy correctly, or credibility for the remainder of the response is lost.
    • The below is a cut n paste from the letter.

      [t]o promote the Progress of Science and useful Arts,open-source advocates argue against copyright and patent laws, and whatever measures they take to by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

      Propaganda in additioned to flawed logic often resorts to poor writing style. Since the intent is to mislead and lie, paragraphs and sentences are constructed to misguide the reader with asser
    • Lessig quotes newsforge [newsforge.com] as the source, and there indeed the "open source advocates" do apear in the quote. So this is eighter an error of newsforge, or, SCO goofed up, but later corrects the mistake. And newsforge copies SCO's text just before SCO corrects the error.

      But you are right, on SCO's [sco.com] site the "open source advocates" do not apear.

  • FIRE!!! (Score:4, Funny)

    by darkmayo (251580) on Friday December 05, 2003 @11:34AM (#7639327)
    OK somebody has to have some DeathHeads to rain upon SCO's tank.
  • by 3Suns (250606) on Friday December 05, 2003 @11:35AM (#7639342) Homepage
    It seems that Darl & Co. have a very specific (and obviously very wrong) idea of what the GPL actually is. They seem to believe that Open Source advocates think the GPL applies to everything, just automatically. This is in accordance to their paranoid beliefs that Linux is actually SysV Unix that was "stolen" with the GPL. I can just imagine this happening in court:

    IBM: "No, actually Mr. McBride, the GPL can only be applied by the copyright holder. Just like any other license."

    Darl: "Umm, you mean... So the GPL... Hey, look over there!" *flees the country*
  • by Dunark (621237) on Friday December 05, 2003 @11:36AM (#7639349)
    The good stuff is from IBM:

    http://sco.tuxrocks.com/Docs/IBM/Doc-86.pdf

    It's "put up or shut up" time for SCO. Read and enjoy.
  • by rice_burners_suck (243660) on Friday December 05, 2003 @11:36AM (#7639353)
    It appears that instead of developing software, they have changed their mission statement to, "Litigate everybody out of business."

    This is what worries me about SCO: That their army of lawyers will wreak terrible legal havoc, not because SCO was right, or because SCO suffered damages--I strongly believe that neither of these is the case. Their army of lawyers will pull off Bill Gates style, "I don't understand your question," when the question is, "Does X concern you?" They'll pull off Bill Clinton style, "That depends on what 'is' means." They'll find loopholes and language in the law that nobody ever thought was there, with newly made-up implications that no legislator intended or thought would occur, to cause as much damage as possible to the Linux community and the free software community in general.

    The longer I think about this, the more apparent it becomes to me that they do not want to profit from litigation. It's like the old story of people who are seated at both sides of a long table covered with the most wonderful foods in the world. The only problem is that the silverware is a yard long, and nobody's arm is long enough to fit their spoon or fork into their mouth. So somebody comes up with the idea that everyone should feed the person seated across from him. That way, everybody gets to eat. But Darl says, "What?! I will feed somebody else?! NO WAY! Sure, it means I won't eat but he won't eat either!!" That, I strongly believe, is the nature of Darl McBride, and the new SCO.

    They do not want to profit. They do not want to rectify damages (which I strongly believe never occurred). They do not want to protect their copyrights (which I strongly believe were never violated). They are focused on one solitary goal, and that is to destroy (or damage, to the greatest extent possible) Linux.

    • Nature has a way of dealing with this. The "cooperative" species are selected to survive. Sex is designed that way. Nature built the "idea" of cooperation into it. The Shakers* disavowed sex. Today, there are virtually no Shakers.

      Darl is a business masturbator.

      *a religious sect related to today's Quakers.
  • Request SCO source (Score:5, Interesting)

    by Camel Pilot (78781) on Friday December 05, 2003 @11:38AM (#7639369) Homepage Journal
    SCO has requested "all versions or iterations of AIX". Why can't IBM request all recent versions or iterations of SCO products to look for inclusion of GPL code? There has been some evidence that such inclusions or copying has occurred.
  • by fw3 (523647) * on Friday December 05, 2003 @11:44AM (#7639429) Homepage Journal
    From the Lessig commentary: If he chooses to give his property away, that does not make it any less a property right. If he chooses to sell it for $1,000,000, that doesn't make it any less a property right. And if he chooses to license it on the condition that source code be made free, that doesn't make it any less a property right.

    Precedent: Rudolf Diesel patented the Diesel cycle engine in 1898. One of the reasons that the far less efficent Otto cycle (4-stroke gasoline) engine was/is more widely deployed is that Diesel would only license his patent for what he considered 'best use', requiring that Diesel engines must inject fuel continuously into the combustion chamber thoughout the combustion/power stroke.

    This dictated a much lower power:weight ratio in early Diesel engines, which is appropriate to stationary power genaration but represented a distinct disadvantage for traction-power and automotive use.

    Diesel's approach to license was probably not the most lucrative either for himself or society at large, however the *property right* granted by patent (and copyright) law let him make that determination.

    To my mind whether commercial EULA, BSD, GPL, Artistic, all licenses fundamentally serve the purpose of allowing the *Author* a degree of control over the application and distribution of his/her work.

    This is also how we get an OSS environment where two different Authors (say Linus Torvalds and Richard Stallman) have the right to apply the same license (GPL) according to their own wishes.

    Process rights are a good thing. SCO's making the best case it can but I really think it's going to backfire on them. Their rhetoric really doesn't stand up to analysis.

  • by trick-knee (645386) on Friday December 05, 2003 @11:45AM (#7639436) Homepage

    I'd like to point out that the work that Pamela Jones & Co. at GROKLAW is clearly of some real use to IBM in this case. another poster has already mentioned [slashdot.org] that IBM has specifically cited a transcription GROKLAW produced in their recent filing [tuxrocks.com].

    I would also like to remind others that there's a little paypal donation button on the front page of GROKLAW [groklaw.net], as mauryisland pointed out elsewhere [slashdot.org].

    click that button. give her a holiday bonus, just enough to make it hurt you a tiny little bit. and let's see just how robust PayPal's servers [paypal.com] are.

  • by MongooseCN (139203) on Friday December 05, 2003 @11:45AM (#7639440) Homepage
    Are we in Soviet Russia?
  • Enough already! (Score:5, Interesting)

    by Frodo420024 (557006) <henrik@fang[ ].dk ['orn' in gap]> on Friday December 05, 2003 @11:46AM (#7639447) Homepage Journal
    Instead of the (twice-)daily SCO item, isn't it time to have an 'SCO vs. IBM' box that carries the big load of SCO messages instead of posting everything to the main page. Or even a GrokLaw one, that's where you read 90% of the stuff anyway.

    Then post to the main page when there's something really big coming, and otherwise let everyone else go on with the usual kernel rumours, Ogg design wins, etc. etc.

    I enjoy GrokLaw a lot, and I'm (trying to) read /. for more general news items.

    [Rant off :]

  • by Doc Ruby (173196) on Friday December 05, 2003 @11:52AM (#7639504) Homepage Journal
    Darl McBride is effectively arguing that the US Constitution requires property owners to make a profit on their property, so sharing property is unamerican, and illegal. Ironically, when he trades his SCO shares to his lawyers at the height of his SCO vs. GPL hysteria, he will be cheating them, or their victims down the line, of any profit from a company that has destroyed all its goodwill, and much of its viable intellectual property. Hopefully McBride is investing his scambucks in a bunker in the Utah mountains, where he can be safe from the rising tide of sharers who understand the "network effect" of economics, where intellectual property value increases when it's more widely distributed.
  • by gowen (141411) <gwowen@gmail.com> on Friday December 05, 2003 @11:55AM (#7639535) Homepage Journal
    "If Darl McBride was in charge, he'd probably make marriage unconstitutional too, since clearly it de-emphasizes the commercial nature of normal human interaction, and probably is a major impediment to the commercial growth of prostitution."
    -- Linus Torvalds [infoworld.com]
  • by Schlemphfer (556732) on Friday December 05, 2003 @11:56AM (#7639550) Homepage
    I suffered through reading Darl's open letter last night, and I just read Lessig's response. A few observations:

    In my experience, when somebody has a strong argument about why they have been wronged, the argument is fairly easy to make and usually reads clearly and with a logical flow. But since SCO won't put up or shut up regarding the allegedly pilfered code (and what little they put up was thoroughly debunked) -- Darl is stuck making this hard-to-follow argument about why his company's business practices are what the Founding Fathers fantasized about when writing the constitution.

    So instead of getting clear and convincing evidence that SCO's code was stolen, we get this poorly written argument that the GPL is immoral and illegal.

    Let me make a comment on the GPL that Lessig hasn't made, and that I think gets to the heart of why Darl's arguments are pathetic.

    I think Darl would have a great case that the GPL is illegal if the terms of the GPL license conferred greater privileges to the software developer than do licenses that come with store-bought proprietary software. But the fact is that, under the GPL, the developer is voluntarily surrendering some of the rights he would gain under normal copyright. And he's not claiming any other rights beyond what's normally handed out under the copyright law.

    This is where Darl's anti-GPL argument breaks down. He's given no convincing explanation why a software developer can't voluntarily surrender some, but not all, of the rights gained by copyright.

    Frankly, the only reason everybody's not tearing gaping holes in Darl's open letter is that it's so poorly written that it's hard to know what the hell he's talking about.

  • by daviddennis (10926) <david@amazing.com> on Friday December 05, 2003 @11:59AM (#7639568) Homepage
    When I write software, I certainly don't save every version of every program I've ever written. And I delete old backups on a continuous basis to save disk space.

    So there's no way in the world I could even comply with such a request, since the information just isn't there.

    IBM might well save every daily backup tape because they're so huge they can afford to without breaking a sweat. Maybe they should just dump every single tape for every single version of every operating system they have, and let SCI sort it out.

    But I'm curious about the interim versions, since I would think that it would not be a copyright violation unless the code was in the distributed version ... would it?

    D

  • 11000 resellers? (Score:3, Interesting)

    by Frodo420024 (557006) <henrik@fang[ ].dk ['orn' in gap]> on Friday December 05, 2003 @11:59AM (#7639572) Homepage Journal
    I did a little math. With 11,000 resellers, a revenue of $22 million a quarter, each reseller on average does a mere $2000 worth of SCO sales each quarter. $8000 a year! They're tiny!
  • by brrrrrrt (628665) on Friday December 05, 2003 @12:03PM (#7639608)
    A few years ago in Belgium, when the "Vlaams Blok" (Flemish extreme right wing party) was gaining a lot of momentum, the established parties agreed to a "cordon sanitaire" (cord of cleanliness) around that party.

    They agreed no one would cooperate with the Vlaams Blok to form a government, however profitable it might have been for each of them (practically or power-wise) separately.

    With this "gentleman's agreement" they managed to keep the Vlaams Blok out of government. The agreement only worked on the basis of all partakers abiding by the agreement.

    I hope the big software/consultancy companies out there will make up some sort of similar agreement between them, that no one will buy SCO whatever happens.
    Let them perish in shame, let the shareholders and management lose all their money. That'll teach them.
  • by geomon (78680) on Friday December 05, 2003 @12:04PM (#7639619) Homepage Journal
    feel that PJ would be an asset to any law firm? Who did Boies hire? The C- paralegal?

    Just another example of open source producing world-class professionals.

  • One question (Score:4, Interesting)

    by KoolDude (614134) on Friday December 05, 2003 @12:16PM (#7639746)

    Darl's open letter claims that GPL and Free Software Foundation are hurting their Pure Software business model. On the other hand, many companies, including IBM and RedHat are making profit using GPL and Free Software. Why would any judge invalidate GPL and hurt corporations that adapt their strategies to changing markets just to satisfy corporations like SCO who base their business on outdated models ?
  • by werdna (39029) on Friday December 05, 2003 @12:20PM (#7639795) Journal
    When I was young, it was the plaintiff who was responsible for preparing enough evidence to present to the court, but in Darl's world, with army of lawyers who will be given 20% of the proceeds from the settlement or of 'a sale of SCO during the pendancy of litigation', apparently rules are different.

    Nothing here to see, move along. Seriously, let's get hysterical about the real stuff in this suit, OK?

    In the United States, both parties to a civil action are permitted to "obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party." Fed. R. Civ. P. Rule 26(b). Matter is subject to discovery if it is itself evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

    To that end, parties may propund interrogatories (questions requiring written answers signed under oath), depositions, requests for documents and things, inspections of property and testing, and requests for admission. While there are limits to what can be obtained, pretty much everything relevant and not privileged is discoverable, even when it is incredibly expensive and burdensome to produce.

    If a party doesn't produce it, the court may compel production by judicial order on pain of contempt or worse --the court may award sanctions and penalties, and ultimately can award sanctions that can go to the merits of the case, dismissing or awarding judgment for failure to comply.

    It is and always has been the rule that a plaintiff is permitted to use discovery to compel production of smoking guns and killer evidence, even where the plaintiff (and particularly because the plaintiff) bears the burden of proof. That, by the way, is how Boies nailed Microsoft -- but for the expedient of discovery, the government probably would not have won its antitrust case.

    Discovery disputes of this kind are routine in big ticket litigation. Nothing here to see, move along.
  • Sue SCO under DMCA (Score:4, Interesting)

    by RealProgrammer (723725) on Friday December 05, 2003 @12:40PM (#7639972) Homepage Journal
    In SCO's motion [groklaw.net], they say:
    by receiving all versions and iterations of AIX and Dynix, SCO will have evidence of IBM's development of Linux in violation of its contractual and legal obligations.

    In other words, SCO believes it owns AIX and Dynix, and that IBM used SCO's AIX and Dynix code to improve Linux.

    On the other hand, SCO is or has been distributing software that was released under the GPL and BSD licences. They have voided their right to do so. They have allowed software released under BSD and almost certainly GPL licenses to be inserted into their Unix variant.

    Under the DMCA and CA76, the FSF and UC can demand that they stop distribution of any Unix-like operating system until all GPL/BSD code is removed.

    Suing SCO for violation of the Copyright Act might not be successful in court, but it could be. Even if the suit were to fail (or more likely, SCO go under before a trial), the publicity of such a suit would make it obvious that Open Source adherents are not anti-copyright. We just prefer a different EULA.

    What's really wrong with SCO's position? I agree with Lessig:

    In SCO's open letter [slashdot.org] [slashdot.org], they say:

    ... "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge.... The profit motive is the engine that ensures the progress of science."...

    Their argument is that the profit motive is what is important about copyrights. According to SCO, the intent of the author and his right to control the distribution of his work are a secondary side effect of the profit motive and our economy's need for him to profit from his work.

    That twisted paradigm underpins SCO's business plan, their market strategy, and their case against IBM.

    I believe it's time to sue SCO, in order to make clear that it's the author's right to control his work and who profits from it that matters, and not just his right to profit.

  • by sethadam1 (530629) * <adam AT firsttube DOT com> on Friday December 05, 2003 @12:59PM (#7640176) Homepage
    Want to reach the IT Community? Want to get to Linux users? Have an important message you simply must convey in serious terms to IS Professionals?

    We have the answer! The staff of ATTORNEY DAVIS BOIES will sue anyone - AND WE MEAN ANYONE! - to get your message across. Don't have a case? That's okay, we don't care! We expect to lose.

    Nothing will get your word out faster and with a more poigant stab than a lawsuit. We managed to get our three-quarter dead client SCO the front page of popular news site Slashdot over a hundred times this year alone!

    Here are some quotes from our clients:

    "We were just about to go under, so with the help of ATTORNEY DAVID BOIES, we went ahead and claimed ownship of the whole of UNIX! We probably won't win, but our stock is up thousands of percents!"
    -Chris Sontagg, unnamed tech company

    "I am a stupid monkey, but all up-to-date IT professionals know my name. Did I just say up to date? David, quick, patent that term so we can sue Red Hat!"
    -Darl McBride, professional Ass Hat

    You too can get the word out! Just call ATTORNEY DAVIS BOIES at 1-888-US-FRAUD!
  • by El (94934) on Friday December 05, 2003 @01:25PM (#7640430)
    Give SCO exactly what it's asking for! Fire up the old 132-column line printers, print it all out on old quadruple spaced green/white fanfold paper in all upper case, hire 50 semitrucks and an army of Teamsters, show up at SCO headquarters in Utah, have the Teamsters swagger in and demand "Hey Darl, where d'ya want this stuff?" then proceed to dump it all in the lobby... priceless! Of course, some environmentalists might complain about the wanton destruction of trees, but it would be worth it!
  • by PB8 (84009) on Friday December 05, 2003 @01:56PM (#7640694)
    See comments on Groklaw or Yahoo! SCOX BBS.
    SCO has 30 days to provide their evidence.
    Both IBM motions to compel granted.
    None of SCO's.
    Boies & Heise were no shows.
    Darl's brother Kevin argued.

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