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SCO Found No Source Code In 2004 154

Posted by CmdrTaco
from the dying-from-nor-surprise dept.
doperative writes "A consultant hired by SCO in 2004 to compare UNIX and Linux, with the thought he could be used as an expert at trial, says that, after days and days, his comparison tool found 'very little correlation'. When he told that to SCO, it paid him and he never heard from SCO again."
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SCO Found No Source Code In 2004

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  • by geekoid (135745)

    I ahd hoped we were done. Espcially with SCO nonstories.

    Company hires guy to looks for something.
    He doesn't find it,
    SCO pays as agreed.

    sheesh.

    • by Frosty Piss (770223) * on Wednesday March 02, 2011 @01:22PM (#35358620)
      Read this part to understand why it is still relevent (there are, after all, still cases pending):

      So, my head is spinning, because what I'm thinking is: does this demonstrate that SCO knew there was no basis for their copyright infringement claims against IBM, Novell, AutoZone, and the world, at least by 2004? We'd have to do discovery on the matter to know for sure, but if they deliberately buried evidence, I would imagine it could impact damages due to SCO's victims, not just from SCO but conceivably from SCO's lawyers as well, should it be established that the litigation was frivolous and SCO knew it way back in 2004. I'm sure SCO's lawyers will have a long song and dance about it to deny it all, but it's certainly a huge red flag to me.

      • by cforciea (1926392) on Wednesday March 02, 2011 @01:34PM (#35358764)
        That's all well and good, but all this would prove is that SCO knew that one guy they contracted couldn't find a basis for their claims, not that they knew the lawsuit was baseless. Or do you think that SCO's lawyers are the only ones that have ever shopped around for multiple expert witnesses before keeping the one that best supported their claim?
        • Or perhaps they just stopped looking... If so, they could be in more trouble. This is why more discovery is needed. Not that there is anything left to get from them...
          • by hairyfeet (841228)

            But seriously what would be the point NOW? SCO is a corpse and being divided up by the courts to pay creditors, McBride lost his home, I mean WTH is the point in continuing to harp on about a company that you have already destroyed by proving they were bullshit in the courts?

            It would be a hell of a lot better if FOSS guys could just let the damned company die already and instead focus on more pressing issues, like how more and more of the Droid devices coming out have been "TiVo Tricked" making the GPL wort

        • Re: (Score:3, Informative)

          by mysidia (191772)

          That's all well and good, but all this would prove is that SCO knew that one guy they contracted couldn't find a basis for their claims, not that they knew the lawsuit was baseless.

          I think the point is the guy they contracted found evidence that there was no correlation between contents of SCO and Linux source trees.

          It's not a matter of him not finding anything; it's a matter of him finding something; that is, evidence that would have been beneficial to their adversary in court, that they did not pr

          • Re:wow, a SCO story? (Score:5, Informative)

            by nomadic (141991) <nomadicworld@gma ... minus herbivore> on Wednesday March 02, 2011 @02:15PM (#35359390) Homepage
            You do not have to produce your expert's analyses to the other side or the court under the Federal rules.
            • by ukemike (956477) on Wednesday March 02, 2011 @06:29PM (#35362690) Homepage
              This is called expert witness shopping. The guy performed ethically and SCO did a very standard thing. Most people who do expert witness work avoid being a "hired gun." A hired gun is an expert who can be told what to testify. Obviously having such a reputation will make it easy for opposing counsel to rip your credibility to shreds. So when a legal team needs a particular opinion, they hire several experts, none of whom are hired guns, and ask each of them to look at the issues and render an opinion. One of those opinions might be more helpful to the case that the others. That will be the expert that they put on the stand. This guy was hired, his opinion wasn't helpful, they paid him and moved on.

              The key thing to remember here is that different experts legitimately have different opinions and there is nothing inherently unethical about this process.

              BTW what is up with /.'s formatting? Lots of posts today are double spaced, including this one!
              • by Calydor (739835)
                The double spacing is a bug that appears if you haven't opened every parent comment above the one you're reading.
          • That isn't evidence. The evidence is the source code. You are talking about analysis of evidence, which you aren't required to hand over.

            Pinning this up as a "win" would be paramount to asking why NASA is continuing to look for habitable planets when an expert (me), has spent countless days looking up at the sky, and I found absolutely none. If I wrote that in a report to NASA, and they paid me for it, could I then sue the government for wasting tax dollars on a frivolous pursuit to find something I told

            • by causality (777677)

              could I then sue the government for wasting tax dollars on a frivolous pursuit

              Of course not. That's their job.

              Occasionally things like law enforcement against those who use force/fraud to deprive others of civil rights, public works like roads and bridges, and legitimate national defense against an unprovoked foreign aggressor take place ... but they're working on that.

          • Couple of things: This was a civil case so the rules of evidence are different. In a criminal case, the prosecution must turn over any "exculpatory" evidence but not all evidence whereas the defense is not required to do the same. In a civil case neither side is required to turn over evidence in discovery unless ordered to do so. Discovery orders are often very explicit in what must be included. That being said, SCO is probably safe unless one of the discovery orders specified "any and all code analyse
      • Re: (Score:2, Insightful)

        by Runaway1956 (1322357)
        Forgive me, but I thought SCO was frivolous long before 2004. Ohhhhh - maybe about 1994? If I'm going to be halfway serious, I'll have to admit that I didn't even know who or what SCO was until around 2000. Maybe 1998, certainly no earlier. But, with each and every new headline, I just got more and more puzzled about the whole mess. I mean - time and time again, over the years, someone points to some snippet of code in Linux, and hollers "AHH-HA!" And, Torvalds and company look at the snippet, and tel
      • by perpenso (1613749) on Wednesday March 02, 2011 @01:52PM (#35359038)

        Read this part to understand why it is still relevent (there are, after all, still cases pending):

        So, my head is spinning, because what I'm thinking is: does this demonstrate that SCO knew there was no basis for their copyright infringement claims...

        It does not.

        "Argument from ignorance, also known as argumentum ad ignorantiam or appeal to ignorance, is an informal logical fallacy. It asserts that a proposition is necessarily true because it has not been proven false (or vice versa). This represents a type of false dichotomy in that it excludes a third option, which is: there is insufficient investigation and therefore insufficient information to "prove" the proposition to be either true or false. Nor does it allow the admission that the choices may in fact not be two (true or false), but may be as many as four; with (3) being unknown between true or false; and (4) being unknowable (among the first three). And finally, any action taken, based upon such a pseudo "proof" is fallaciously valid, that is, it is being asserted to be valid based upon a fallacy.[1] In debates, appeals to ignorance are sometimes used to shift the burden of proof."
        http://en.wikipedia.org/wiki/Argument_from_ignorance [wikipedia.org]

        • You are stealing my material. I'm the one that's been arguing based on structured logical conventions lately.
          • by SEWilco (27983)

            You are stealing my material. I'm the one that's been arguing based on structured logical conventions lately.

            Sue him!

            • by AHuxley (892839)
              A legal app? Take a pic of the text, OCR it and let it do the word math. A map of the USA pops up with green for starting legal action ... and a list of local legal experts waiting to help.
          • by perpenso (1613749)

            You are stealing my material. I'm the one that's been arguing based on structured logical conventions lately.

            Can I get a license for your material? :-)

            • That would also be logically incoherent, as there is much prior art! I mean it's a minority of course, but the minority has done a lot of work....
        • by timeOday (582209)
          What a bunch of words. You can't file a lawsuit resting on accusations substantiated only by your own inability to falsify them!

          IMHO, logical fallicies are usually useless as applied to real world arguments. Would you like to hear all about why I think "no true Scotsman" is being inappropriately applied more often than not? Oh, bummer, I thought sure you would.

          • What a bunch of words. You can't file a lawsuit resting on accusations substantiated only by your own inability to falsify them! IMHO, logical fallicies are usually useless as applied to real world arguments. Would you like to hear all about why I think "no true Scotsman" is being inappropriately applied more often than not? Oh, bummer, I thought sure you would.

            Here are some more words you may like: "Ignoratio elenchi (also known as irrelevant conclusion[1] or irrelevant thesis) is the informal fallacy of presenting an argument that may in itself be valid, but does not address the issue in question." ;-)
            http://en.wikipedia.org/wiki/Ignoratio_elenchi [wikipedia.org]

            Note that in this discussion the issue would be:
            (1) One consultant says he did not find anything.
            (2) One poster wondered if this proved that SCO knew there was nothing.
            (3) I argued "no", that (1) was insufficien

            • by timeOday (582209)
              If a qualified person with access to SCO source code looked for copies of that code in Linux and did not find anything, that is fairly conclusive.

              They say you can't prove a negative. But in fact there's a huge difference between proving there are no aliens in outer space (hard) vs. proving there's no elephant in this room (easy). The LInux codebase is openly available and rather small, relative to the power of tools available to search it.

              • by perpenso (1613749)

                If a qualified person with access to SCO source code looked for copies of that code in Linux and did not find anything, that is fairly conclusive. They say you can't prove a negative. But in fact there's a huge difference between proving there are no aliens in outer space (hard) vs. proving there's no elephant in this room (easy). The LInux codebase is openly available and rather small, relative to the power of tools available to search it.

                All we have is one consultant's statement that he found nothing. That does not tell us if SCO had other consultants working independently who came to a different conclusion. That is why this one data point is insufficient to conclude that SCO knew there was no copying. The fact that someone identified errno.h (correctly or incorrectly) seems to indicate that there was at least one other person also doing the research. Again, I am only arguing against the meme that SCO knew they had no possible infringement.

          • You can't file a lawsuit resting on accusations substantiated only by your own inability to falsify them!

            Of course you can file it; it just isn't likely to proceed.

            • by micheas (231635)

              It depends on the state, but in some states, if you are an attorney and that is the basis of the lawsuit, you are liable for the costs of getting the case thrown out. Which is pretty close to saying that you are not allowed to file a lawsuit with no facts.

      • by geekoid (135745)

        Fie, it's a minor legal issue and is no longer but remotely nerdy, nor does it any longer have an impact in technology or the industry. At this point its just a company trying to put out their pants.

        "For the sake of full disclosure, I was hired by SCO for a month in 2004 as a consultant and potential testifying expert witness in this case. The code analysis had already been under way for a while by other consultants on the case. My CodeMatch tool for measuring source code correlation was fairly new at that

      • by Anonymous Coward

        Yup. There are some fairly serious legal implications for a lot of people if this scenario is deemed true and taken to full length in the courts.

        One example that comes to mind is, perhaps Mr. Mcbride perjured himself. (this is speculation as I have not read the entire SCO trial transcripts)

      • by rgviza (1303161)

        "Talk is cheap. Show me the code."
        -Linus Torvalds

      • by scubamage (727538)
        It doesn't matter, its past the statute of limitations. In most states its 2 years on civil claims (IANAL, just remember it from college).
      • Is there a statute of limitations for this sort of offense? If there is, the window for pursuit may be closing.
    • semi-obligatory : The code is a lie
    • It's the difference between going to court because you mistakenly believed the other guy is infringing and going to court knowing full well that the other guy isn't infringing. The first is bullying and unethical, but legal; the same can't be said for the second.

      • Was there ever any doubt that SCO knew full well that there was no infringing code in the Linux kernel? I think the matter was settled when the only evidence they could produce was errno.h.
    • by dkleinsc (563838)

      Among other things, if accurate, it would mean that SCO witnesses committed perjury in depositions, affidavits, and testimony.

      • Among other things, if accurate, it would mean that SCO witnesses committed perjury in depositions, affidavits, and testimony.

        And you could sue them. After all, they probably have more assets than SCO at this point. :)

        • by dkleinsc (563838)

          Perjury isn't a liability issue, it's a criminal issue. If found guilty of either perjury or suborning perjury, Darl McBride could find himself in PMITA prison.

    • by Locke2005 (849178)
      You're missing a step:

      Company hires guy to looks for something.

      He doesn't find it.

      SCO pays as agreed.

      SCO fails to disclose this as a material fact in the case.

    • by LWATCDR (28044)

      I was also. We all know that SCO lied. It also killed Kennedy, has the bodies of space aliens in a freezer, holds the secret patents on a 100 MPG carburetor, and causes cancer.

      I mean really folks it is over only wake the zombie formerly known as SCO when if they look like they could cause problems. At this point it is called whipping a dead horse.

  • by quangdog (1002624) <quangdog @ g mail.com> on Wednesday March 02, 2011 @01:16PM (#35358532)
    It's probably due to some contract thing - but imagine how many fewer annoying articles about SCO and Darl would have been avoided had this guy gone public years ago.
    • by JSBiff (87824)

      I feel very confident saying that if the guy spoke up sooner, there probably would have been MORE annoying articles about SCO and Darl. First, whatever articles his comments appeared in. Then, whatever reply/rebuttal articles were written by SCO's PR team and the journalists in their pocket (like Maureen O'Gara). Then whatever counter-rebuttals might have been written by people like PJ at Groklaw, etc.

      It's sort of like this post. There may or may not be replies to it, but nobody ever replies to a post which

    • by MightyMartian (840721) on Wednesday March 02, 2011 @01:47PM (#35358970) Journal

      I wasn't aware that non-disclosure agreements or contracts of any kind protected someone from revealing if they knew criminal conduct was going on. These guys knew full well that SCO's attorneys and expert witnesses were perjuring themselves, and should have come forward then.

      • by mysidia (191772)

        These guys knew full well that SCO's attorneys and expert witnesses were perjuring themselves, and should have come forward then.

        Do you have any evidence whatsoever these guys read or even knew the content of the expert witness' testimony? Attorneys rarely make testimony in cases they are involved with; it is unlikely any attorneys perjured themselves.

      • by Gutboy (587531) on Wednesday March 02, 2011 @02:43PM (#35359730)
        And what criminal conduct did he know about? Did he read transcripts of the trial and see where they had taken his report and lied about it? He is/was not qualified to comment on the reports from other so-called investigators unless he'd actually read their reports. All he knew was that his study didn't support what they were saying, but that doesn't say anything about other studies that may have been conducted.
      • Re: (Score:3, Insightful)

        by Burning1 (204959)

        It's only wise to expose criminal conduct when you hare irrefutable proof of such. SCO could just as easily argue that he was incompetent at his job, and then pursue him for violating a NDA. And given that his statement is such a blow to their case, I think we can all reasonably expect them to do so.

        • by jimicus (737525)

          Always assuming his NDA had no time limit, of course.

          It's well over six years since he'd have signed it.

    • by Darinbob (1142669)

      It wouldn't have mattered. Saying "my software found no correlation with the samples I was given" means very little.

  • I'm shocked. SHOCKED.
    • Next time Ground yourself AND the power supply before you touch things inside your PC.... And use a grounding strap for the love of God!
      • Grounding yourself will make you a good path to ground. Grounding the power supply well won't help, as it would blow before you touch it if it was faulty in a way that that mattered. When working on live electronics, you often do not want a grounding strap.
    • by kimvette (919543)

      Well, not that shocked! /fry

  • No real surprise there, just verification. SCO got itself in a tight spot financially and was looking for a scapegoat, with many SCO contributors moving to linux at the time linux made it convenient to blame, the backing of big companies contributing to Linux made them perfect target to get money. Their entire case was based on the theory that if people who used to work on SCO were now working on Linux then they must copied code...it sounded feasible to them and I assume their hope was that it would be seen feasible enough to slip through without much investigation.

    • We all knew that SCO had no real claims years ago when we started hearing things from them like "look at errno.h - they are teh same!". It was obvious to anybody paying any attention at all that it was a shakedown from the get-go - their one mistake was picking IBM to shake down, whose policy has always been "millions for defense, but not one cent for tribute", and who has a larger legal department than the US government. The fact that it took as long as it did for the inevitable outcome just shows how brok
      • by GooberToo (74388)

        The fact that it took as long as it did for the inevitable outcome just shows how broken the US legal system (and IP law in particular) really is.

        It doesn't help that the judges in the highest court in the land can be verifiably bought and seemingly, no repercussions whatsoever.

        The US legal system is horribly, horribly broken...and every indication is its by intent. This has happened before. Part of the solution for Congress was to fire massive numbers of judges. This absolutely must be done again.

        • It doesn't help that the judges in the highest court in the land can be verifiably bought and seemingly, no repercussions whatsoever.

          Please provide some support for this wild allegation. Something other than the fact that two of the Justices spoke at a conference sponsored by people you don't like who were (much) later involved peripherally in a case where you don't like how the Court ruled.

          • by GooberToo (74388)

            You mean the stories and undeclared income. Employment for family members shortly before a decision was given. So on and so on. Perhaps you should stay up on fairly recent news events.

        • This has happened before. Part of the solution for Congress was to fire massive numbers of judges.

          when? who?

          • by GooberToo (74388)

            Tried to quickly find a link. I honestly didn't spend much time on it. IIRC, it was during the later part of the 1800s.

            The deal was, far too many judges were known to be corrupt and not following laws, like the US Constitution. Much like we see today. Congress said we'll fire you. The judges said that's not legal and we'll provide for an extremely protracted battle to ensure it never happens. Congress said fine. Congress then dissolved all the courts in which the judges in question presided. They then creat

            • by MarkvW (1037596)

              Parent post is nonsense. Absolute nonsense.

              “By granting district court judges the discretion to refer Title 11 cases to the bankruptcy courts and the authority to withdraw the reference once made, Congress ensures that ‘the judicial power of the United States will be ultimately exercised by an Article III Court.’ In re Parklane/Atlanta Joint Venture, 927 F.2d 532, 538 (11th Cir. 1991). This means that any judge who is going to exercise federal power must be an "Article III judge."

              Article

              • by GooberToo (74388)

                Congress absolutely does have the power to create and dissolve courts. So where does a judge go when he has no court? Seems your nonsense is just that.

    • Now, how many "revelations" have you read recently that made you go "duh!" at best? At worst, you didn't even care enough to read them in full.

      It's not what you say or what a bunch of people say. Especially if they're the "adversary" in the legal battle. How long has everyone with a hint of knowledge questioned the alleged losses of the music industry due to P2P? How long has everyone who ever played a computer game questioned their influence on school shootings?

      It doesn't count 'til someone from the other

  • by Anonymous Coward

    Groklaw still alive.

  • Just like how 'borked', or 'bork' has become.

    sco term itself, will probably be anonymous with blatant greed, bastardry, skulduggery, more and relentless bastardry.

    there are few other contenders to the title actually. however, one of them has a very common name as their name, and the other is hard to use as a term.
  • He said he worked with a sample of both sections of code, supplied by SCO. Presumably SCO thought there was copying between the two, but unless the 'sample' he worked on was the entire code base all it shows is that one test didn't see copied code in that small subset.

    So, his test may or may not have been convincing, even in that small sample, and certainly doesn't prove anything over the whole codeset.

    • by GooberToo (74388)

      It very clearly indicates they were shopping for an expert witness; meaning, shopping for specific testimony regardless of facts. Seemingly, this guy had ethics and didn't lie. By this same line of logic, seeming SCO's experts who did testify, knowingly did so for paychecks rather than merit of claim.

  • by gatkinso (15975) on Wednesday March 02, 2011 @01:30PM (#35358726)

    DAYS? Really?

    I worked for a company that wrote basis path testing and coverage tools, and would generate various metrics like cyclomatic complexity, module cohesion metrics, what not.

    As a baseline we used Linux kernel sources. Also FreeBSD.

    A full report took about 10 hours IIRC, this was in 1999.

    • by geekoid (135745)

      I thought exactly the same thing. I have written tools to look through and compare huge volumes of data that ran for hours, 2 decades ago.

      days? yeah, good luck proving your self in the field.

      Unless he was doing something I don't know about; which is a possibility.

      • days? yeah, good luck proving your self in the field.

        Unless he was doing something I don't know about; which is a possibility.

        Who cares? If his results are accurate and his algortihms are inefficient, he's only slowing down his productivity rate.

        Let's say he charged SCO $50,000 to analyze the code bases. Spent a day setting things up, started the run, went to Mexico for a few days, came back, spent a day writing the report, and sent in the invoice.

        "Ha, Ha, your search is O(n log n)!" ?

    • by number6x (626555)

      Normal rules of time and space do not apply in Herr Blepp's briefcase [linux.com].

    • by tbuskey (135499) on Wednesday March 02, 2011 @02:45PM (#35359756) Journal

      Well, he was probably running on SCO, not Linux or FreeBSD.....

    • Well we don't know how many continuous hours and how repeats and how many comparison variations the consultant ran the program. As an expert, I would hope he had more than a sample size of 1 and that it took into multiple factors like one comparison ignoring capitalization and spacing, etc. Still the basic point would be that the analysis would take a relatively short amount of time and their later whining for more time and delaying tactics of years shows that SCO knew their claims were flimsy.
    • by jameson (54982)

      Some program analyses are linear, others log-linear, others worse. Some require fixed point computation that may run as long as you want it to run. Check the program analysis literature: you'll find analyses for almost any level of complexity you want, and if you pick carefully, more run-time will usually give you better results (though it may or may not be worth the effort).

      Was your tool flow-sensitive? Was it context-sensitive? If so, to what level? Did it normalise the AST, or did it represent the

  • To raise that undead?

    Just asking, in case Jack Thompson wants to know.

  • by OzPeter (195038) on Wednesday March 02, 2011 @01:40PM (#35358862)

    A "security analyst" wanted to make the big time by writing a program that would help out the SCO case. He sold SCO on this idea, but due to the lameness of his program it never produced the expected results. As such, SCO paid him off and moved on

    There! No need for conspiracy theories at all.

  • News that someone was unable to find stolen SCO code in Linux is almost as surprising as the news that Charlie Sheen had his kids taken away from him! I certainly never saw that coming!
    • Charlie Sheen had his kids taken away from him!

      Yo! Charlie! Your kids are over at Darl McBride's house . . . bring over a briefcase of cocaine, and some porn stars, and he will give them back to you, real soon . . .

      Now, didn't this cocaine business get DeLorian into trouble, but . . . whatever . . . .

  • Old news (Score:5, Informative)

    by thue (121682) on Wednesday March 02, 2011 @02:05PM (#35359216) Homepage

    This has been publicly known since 2005: http://en.wikipedia.org/wiki/SCO-Linux_controversies#The_Michael_Davidson_E-Mail [wikipedia.org]

  • by Beelzebud (1361137) on Wednesday March 02, 2011 @02:17PM (#35359406)
    Does this mean it's safe to use Linux again? ;)
  • by airfoobar (1853132) on Wednesday March 02, 2011 @02:29PM (#35359568)

    It seems mighty obvious that SCO's lawsuits aimed to drain Open Source company and community resources, and to spread FUD about the IP status of Open Source code. SCO knew all along that there was no way it could win, as even their own experts were telling them so, yet they went on for years and years fighting a fight that couldn't be won. That goes against the basic formula of a copyright/patent troll, because in those cases the driving motivator is profit, and lack thereof means there's no point to keep going.

    As SCO's first lawsuit was against Microsoft, who immediately settled for millions, my tinfoil headgear is picking up some very suspicious signals...

    • by JamesP (688957)

      That's what you get when you have the kind of money MS has

    • by riverat1 (1048260)

      I kind of think that SCO sued IBM in hopes that IBM would just buy them out rather than go to the expense of defending themselves. When that didn't work out then they had to expand their suits in hopes they might get something from someone else.

  • This guy was hired as an expert by the SCO attorneys on behalf of SCO. He was paid a generous retainer. The attorneys MUST have included confidentiality language in the expert's contract.

    Isn't this guy breaching his contract with SCO and/or SCO's attorneys?

    Why would anybody hire a guy as an expert if he's the kind of guy who is going to turn on them later?

    Something is not computing here? Maybe its as simple as this guy just can't keep is mouth shut, but maybe there's more to the story.

  • Just how and why are we hearing about this at all?

    I'm quite hostile to SCO, but they still deserve all legal rights and priviliges. Otherwise, a trial means nothing.

    This sort of consultancy would be done by SCO's attornies, and protected under attorney-work-product privilige. Justified by the reasonable assumption that different experts might well have different methods, tools and opinions.

  • This guy didn't find proof of anything because he wasn't very good at what he was doing. Him and fifty other guys that SCO might have hired and had sign an NDA to look for incriminating evidence. One guy comes up with a false positive and the game's over as far as SCO's concerned. SCO has all the proof they need and has their expert witness and testimony. What are the other fifty guys going to do? They've signed an NDA and even if they break it, the stock response is, "That guy wasn't very good and/or

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