SCOrched Earth

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.

That's how discovery works in litigation

[Darth_Foo]

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.

Related to Earning Reports?

[Target Practice]

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*

Re:hmmm

[JCMay]

The Fifth Amendment protection against self incrimination applies only to criminal cases, not civil suits.

Lessig Misquoting McBride? Huh?

[Anonymous Coward]

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.

Re:SCOdot

[RocketSHE]

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!

SCO's motion is bullshit....

[Dunark]

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.

Re:Monkeys... trained monkeys....

[pb]

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.

Re:I thought the article was about the game

[tricops]

Well, a bit of googling and the following appears (it helps that I've run into it before though :):
http://www.scorched3d.co.uk/

"Fishing" is not allowed.

[khasim]

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.

Re:hmmm

[buelba]

This is not quite correct. A party to a civil suit can refuse to answer any question (at trial, in a deposition, or an interrogatory) only if the answer might incriminate them. You can't refuse to answer for no reason. In practice, it isn't a viable option for companies like SCO and IBM to say "we are crooks, therefore we won't answer your interrogatory."

The fifth amendment privilege cannot, however, prevent you from handing over evidence. So if I seek a memo from you, and the memo indicates that you may have committed a crime, you have to cough it up. The amendment protects against forced testimony, not forced production of information already written down.

Yes, IAAL, but not a criminal lawyer.

The Glaring Flaw in Darl's GPL argument

[Schlemphfer]

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.

Re:Online mentions in IBM filing

[Red Pointy Tail]

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....

Re:SCOrched Earth

[JofCoRe]

Hmmm, google yielded this: Scorched 3D [scorched3d.co.uk]. Maybe that's the one he's talking aboot...? Says it's an OpenGL remake of the original. I may just have to check that out....

Re:That's how discovery works in litigation

[stewball]

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.

Re:Lessig Misquoting McBride? Huh?

[Camel Pilot]

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 assertions that implied but false.

Re:Lessig Misquoting McBride? Huh?

[joostje]

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.

Re:"Fishing" is not allowed.

[Darth_Foo]

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.

Horse poop isn't that bad.

[whittrash]

Pig shit stinks more, the stench sticks to your skin - truly nasty! Perhaps you may want to consider 'liquified' manure as well. This can be brought next to their building and be pumped in through any opening at high pressure. The poultry shit is truly nasty, with a high enough ammonia content to make your eyes water. Horse and cow shit are not that bad and don't stink long, go for the nasty stuff, pig, poultry and dog shit. properly applied, some of this shit can actually kill a man.

Re:That's how discovery works in litigation

[jonblaze]

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.

Re:"violating the constitution" vs "unconstitution

[Anonymous Coward]

The Constitution governs laws, laws govern everything else. If a law violates another law, the older of the two laws is invalidated. If a law violates the constitution, the law itself is invalidated. If "something else" (in this case, the GPL, which is not a law) violates the Constitution, that doesn't mean anything, since it's goverened by the laws under the Constitution. It would have to be shown in violation of the LAW, not the Constitution.

The same argument can be made about search-and-seizure. The Constitution prevents the government (either law enforcement doing it, or by Congress passing a bill that can be used by somebody in the government to do so) from comming into my house and taking my stuff. However, the Constitution doesn't stop my neighbor from breaking my window and taking my TV. The LAW applies in that case.

If the GPL violates the Constitution, it means nothing. It has to violate a law to be overturned. It doesn't violate either, thoug, so McBride's just blowing smoke and hot air.

Incredible Article by Lessig About the GPL

[Anonymous Coward]

IANAL, but Lawrence Lessig [lessig.org] is. Here is the clearest easiest to understand explanation of the GPL [lessig.org] and how it relates to US and EU copyright law (and SCO, and FUD, and the U.S. Constitution) that I have EVER read!

I HIGHLY RECOMMEND that anyone with any interest or questions in what is going on with the SCO case, Linux, or the GPL read this article; it is that good [jellybelly.com]

Credit where credit is due - first seen referenced on Slashdot (somewhere) and link found on Groklaw [groklaw.net] (somewhere)

Re:"violating the constitution" vs "unconstitution

[/dev/trash]

Sure is. Only the Supreme Court can declare something unconstitutional. Any Tom Dick or Harry can say a law is not constitutional.

Re:Online mentions in IBM filing

[mcc]

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.)

IBM 2 SCO 0 Motions to Compel granted

[PB8]

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.

Re:IBM 2 SCO 0 Motions to Compel granted

[isn't my name]

One other juicy piece to add to the above. All other discovery is halted while SCO is forced to comply to IBM's two motions to compel. So, until SCO ponies up, SCO cannot make and IBM doesn't have to respspond to any discovery requests.

Update from Utah

[Anonymous Coward]

The Magistrate Judge on the case has suspended all discovery EXCEPT SCO responses to IBM requests. Ouch for SCO.

And no one from David Boies' firm even showed up to the hearing. Strange...

see www.groklaw.net for details from some folks who attended.

Re:Soon to be decided

[Zeinfeld]

The magistrate has ruled. She has given SCO 30 days to reveal "with specificity" exactly what code IBM has "infringed". She also suspened all other discovery -- meaning that IBM does not have to provide SCO with anything until after SCO complies with her first order.

Suspending other discovery is amazingly significant here. It means that the judge has decided that the SCO refusal to state their claim is the central issue of the case, all other issues are now secondary.

SCO will dissemble for as long as they can manage and on about day 30 will attempt to provide a second discovery almost as broad as the first. Then we will see whether they get one last chance or a dismissal of their claims.

I don't think there will be much FUD value after a dismissal, sure SCO can appeal up to other courts and try to keep the issue live for a couple of extra months. But the stock price will be in the tank. The analysts think the price will go down to zero. The short interest in the stock is 25% of the float already and doubled in the past month.

Re:You are so mistaken . . .

[Aneurysm9]

It's good to see that some people around here actually do have a clue as to how lawsuits work. Both parties in a civil suit are entitled to very broad discovery under the FRCP. It's also instructive to remember that IBM has made several affirmative defenses and counterclaims, on which they bear the burdens of production and persuasion, placing them in the same position as a plaintiff in a simple suit. That said, SCO would only be entitled to a directed verdict on IBM's counterclaims were IBM to not provide discovery. IBM has no burden with respect to SCO's claims until SCO has met their burden of production and presented a prima facie case. That's why it's called a burden, IBM doesn't have to do a damn thing until the burden is met and they can still win.

Early news from the trial -- Groklaw

[yoriknme]

First Report from Grokker Inside Hearing: IBM Wins Both Motions to Compel Friday, December 05 2003 @ 02:30 PM EST Our first report from a Groklaw volunteer, sam, who attended the court hearing is that IBM won both of its motions to compel and SCO's motion was set for a later date. Here is what sam is telling us, and it's subject to further information and confirmation as more news arrives. We have several attending and I'll do a followup, but this is the first word. Here is what sam is telling us: "Just returned from the hearing. "Needless to say there was blood all over the floor on the SCO side of the aisle none on the 'left' side. "Judge granted both IBM motions to compel, gave SCO thirty days to comply 'with specificity' and suspended further discovery. Did not rule on the SCO motion until next hearing scheduled for Friday, Jan 23 and 10:00 am. "SCO did say that they will be filing a complaint within days on copyright violations. "More to come" So it looks like they have 30 days to finally tell us what code they are talking about "with specificity". Finally.