No Rest for the Weary -- Another SCO Memo, Reply Memorandum Re Discovery

Thursday, July 15 2004 @ 05:58 PM EDT

Contributed by: PJ

See, the problem is, SCO has 14 or 23 or a bucketful of lawyers or whatever the current number is, and it's just us chickens here, so I was sickened to hear there is another memorandum today on Pacer, overlength to boot. I can't help but wonder if the judge is starting to feel the same way.

SCO has filed a Reply Memorandum Regarding Discovery. More whining about discovery. Help yourself. I see they charge IBM with more deadly sins, like "misapprehending" the purpose of discovery (like IBM's lawyers need a class in that), dictating to the court what discovery should be ordered, blocking discovery, and stonewalling. Anybody remember any of that happening? I sure don't.

What I see is that SCO for a year has been angling and angling to get the court to force IBM to hand over every version of AIX since the founding of the world, and in this document, we find out why. So far, the court has refused to order IBM to produce every version. SCO now paints IBM as stalling for not turning over what they haven't been told to produce. Here is an example, from page 5, of the crafty wording SCO uses to try to obfuscate:

"With respect to Dynix/ptx, IBM makes no burden argument of any kind; with respect to AIX, after telling the Court that it would take 'many, many months' to meet the request, IBM now says that it would take only weeks'. Almost every aspect of this discovery in this case has taken 'weeks' -- over fifty weeks have passed since SCO requested the materials, for example, and over twelve weeks have passed since the Court ordered IBM to produce certain of the documents."

The first point is easily answered. Many weeks could mean months. It could even mean years, depending on context. On page 23 SCO tells the judge that "many weeks" must mean less than one month. Is that what "many weeks" means to you? Me either.

The second point is more subtle. SCO implies that IBM has taken over a year to produce what they should and still haven't done so. But the phrase "twelve weeks since the Court ordered IBM to produce certain of the documents" tells the true tale. SCO is asking for more than IBM ever was ordered to produce and then waxing indignant that IBM hasn't voluntarily turned it over. Maybe that part is for the media.

If the court orders IBM to turn it over, no doubt they will. But to act like they are miscreants for not doing what the court never asked them to do is a bit over the top. Unfortunately, the document is subtle and better in quality than usual. I assume that may be the new lawyers at work. SCO keeps mentioning that they need more code because IBM has said that they may ask for summary judgment on the contract claims. What does that have to do with the price of tea in China? It's not before the court, because it absolutely hasn't happened. What they need to address is why they certified to the court that their discovery was complete and now want to do more.

You can see that IBM's summary judgment motion has scared the pants off SCO and startled them into intense activity. It reminds me of a look I sometimes would see when, as a young girl, I used to walk into chess clubs and play older men, when they'd let me, and sometimes I'd do something they never expected someone who looked like me to know how to do, and the look in their eyes when it suddenly dawned on them that I was about to checkmate them used to give me some enjoyment. I see, so to speak, that look in SCO's eyes. IBM made a move they didn't expect, and they are sitting up and taking notice now of the full implications.

Even if IBM were to lose their summary judgment, which is conceivable -- anything can happen in a courtroom, which is why you never want to be in one, if you can avoid it -- you can see the value in their bringing it. SCO has been forced to tell a bit more about what they have in mind. You'll see their contract theory very clearly in this document when they are forced to explain why they want every version of AIX and Dynix since the creation, beginning on page 12. It's all about derivatives, and it's not just System V. The contract restrictions, they claim, apply to "each successive iteration of the derivative program and not to System V alone". If they can prove that IBM "disclosed, exported, or published those derivatives", they can nail them to the wall, according to their theory and interpretation of the contract. If you remember Mr. Hatch's rungs on the ladder argument, here it is in a more sophisticated iteration. It's all about contracts, not much about copyright, and even then, it's more methods and concepts. Copyright is the smallest part of this whole burrito SCO is serving up, despite what they have told the media for so long. "Nowhere in SCO's complaint is there a Linux-based copyright claim," SCO writes. It's only evil IBM that "injected Linux copyright issues into this case through its Tenth Counterclaim." Can you imagine?

I suggest everyone evaluate IBM's other alleged Deadly Sins in the light of that SCOsentence. Methinks SCO spoke to the media with forked tongue, n'est-ce pas? Also to the court, by my reckoning, since they go on to argue that because IBM only just introduced this new and foreign concept into the case, SCO hasn't had time to do discovery about copyright infringement. Now, they assert, IBM is trying to cut them off without *any* discovery on this "new" counterclaim. Like they had no time since March to do discovery, even if this fantasy or whatever word you wish to use were reality.

Note also footnote 3 on page 16: "SCO's copyright claims are based on claims that IBM transferred UNIX code to India, a country where the licensing agreement prohibited its use, and that IBM continued to use and distribute UNIX after SCO had terminated the licensing agreement." Of course, they don't mention Novell waiving that purported "termination" or the echo newsletters. This entire nasty document fairly screams: "IBM. Buy us and we'll stop." However, they are a gnat to IBM, who knows what to do about gnats.

SCO is like a young child in a supermarket, sitting in the cart seat and whining over and over to mom that it wants candy. Have you ever seen a mother finally cave in after repeatedly saying no, just to make the child shut up? I think they hope the judge will finally cave in and say, All right. Here's your discovery. Now take your code and leave me in peace.

You'll enjoy footnote 4 on page 18 too. SCO now does some math on how long it will take them to look for infringing code without more discovery, and it adds up to 25,000 man years. Yup. Cross my heart and hope to die. I'd be interested in all you brainiacs reading pages 18 onward and seeing what you think about their technical arguments, which sound zany to me. In footnote 7, on page 20, which refers to a declaration by Chris Sontag, which is under seal, it mentions a case, Gates. No, it isn't that Gates. Here is the case, which elaborates on the abstraction-filtration-comparison test. Here is footnote 7:

"The Sontag Declaration describes how such an examination of code lineage would streamline SCO's discovery efforts. Mr. Sontag provides an example of SCO's UNIX System V source code for a print error function (perror.c), illustrating accumulated modifications over time. The first version of the code appeared in 1981, and by the time the seventeenth version appeared more than ten years later, the perror.c code sequence was almost unrecognizable from the initial version. Yet a careful review of the code reveals that the seventeenth and the initial versions have the same structure, sequence, and organization -- the accepted test to show substantial similarity. See Gates, 9 F.3d at 836-839. Table I, which shows the incremental change to perror.c code over time by way of code difference plots, makes explicit what SCO contends here: access to IBM's CMVC system would greatly streamline SCO's discovery efforts. See Sontag Decl. 37-42."

Then after telling the judge how many man years it will take to look it all over, it says it will be a snap for IBM to produce it all lickety split. Sigh. Logic has never been SCO's strong suit. No pun intended. Although, now that you mention it...

SCO repeatedly argues that it needs all this discovery so it can "streamline, narrow and prioritize its searches for code and non-literal elements in Linux that originated in UNIX." If they get every version of AIX and Dynix that there ever were, how will that streamline the search? It's silly to say that, but they are trying to tell the judge that it will speed the process up and increase efficiency, because judges like to hear that. It just makes no sense, logically. Don't get me started on morality.

It's better work, technically, than we are used to from SCO -- they actually did some research -- and that makes it more interesting, but it makes me sad to see talent used this way. If my husband or my dad wrote this, I wouldn't feel proud of him.