"This Is About *Your* Response To The Order" - Judge Wells

Saturday, February 07 2004 @ 04:13 PM EST

Contributed by: PJ

We'll be able to get a transcript soon, but while we wait, Bob Mims has a delicious morsel. It seems that SCO tried at the hearing to argue that they couldn't tell the court what lines of code in Linux are infringing with specificity unless they get to see AIX first. Again with that argument. It didn't fly. Again.

The judge, bless her heart, told them that her order already answered that question: *they* were to go first. Period.

Here is the exchange, as he reports it, starting with SCO attorney Heise:

"But to provide the 'line by line' evidence IBM is now demanding, he said, would require Big Blue to release AIX and Dynix code -- as SCO has requested in its own discovery motion.

   "Wells interrupted: 'The requirement of the court is that you provide those source codes; this is about your response to the order.'

"Heise insisted, however, that without IBM's compliance, 'it is literally impossible' for SCO to itself provide direct proof of the Unix-to-AIX/Dynix-to-Linux continuum it argues exists.

   "'We're at an impasse and we can't be at an impasse and have this case remain at a standstill,' Wells responded. 'You've made your point -- I'm just not certain I agree.'"

If you recall, SCO told journalists with a straight face that this hearing was going to be about IBM turning over AIX. Was it?

So, SCO picked a fight with IBM without have any proof of actual infringement? They still have no proof that IBM sent AIX code to Linux? And they stand before the judge and say it is "literally impossible" to prove that code went to Linux from Unix via AIX unless they get to look at IBM's code?

Remarkable. Let me get this straight. They filed on a hunch, because they just figure it must have happened somehow, knowing they had no proof of copyright infringement. And for that they would like a billion dollars or so, give or take a billion? Or 50 billion or whatever.

More remarkably, they get headlines everywhere today in the mainstream press about SCO adding a copyright infringement claim, as if it were a serious threat. They added the claim based on a hunch that they admit they can't prove. You think they'll collect?

When Heise asked for all the AIX code from the founding of the world and said, one more time, that SCO can't reveal the code without giving away their precious, supersecret IP that the whole world isn't interested in using any more, judging from their SEC filings, IBM's Dave Marriott said all they need to do is go on the Internet, because Linux is public, drawing this response:

"Heise countered that "not everything they have put into Linux is public. . ."

I can't wait to read the transcript in full. This is better than a movie. No kidding. I'd pay to watch this play out, if it wasn't free. Darl is pitching to the press that the Linux community hates him, but speaking for myself, this is more entertaining than anything I've ever paid to watch in my whole life.

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