Today's Hearing in SCO v. IBM - Eyewitness Reports -- What Does Any of This Have to Do With Linux?

Tuesday, October 19 2004 @ 04:27 PM EDT

Contributed by: PJ

Here's the scoop from today's hearing. We had two eyewitnesses there today, and here is the first report, from Frank Sorenson. The summary is this: each side argued its position, SCO as to why it needed more AIX and Dynix code and remote access to CMVC etc., and IBM as to why it's a needless burden and all a red herring anyway, that IBM has already given them what they need.

They talked again about SCO wanting to travel from Aurora, NY to LA and asking for a map to China. IBM's David Marriott said that now SCO is not only asking for a map to China, which won't help it get to LA, but it wants every version of every map of China, including all the drafts, and all the maps of all the roads in China, including all the roads ever contemplated but never actually built.

At the end of the hearing, Judge Brook Wells ordered the following:

1. parties are to prepare and exchange privilege logs in the next 30 days -- this apparently has to do with the hush hush emails they have been signifying about in the courtroom but that we don't have information about, because it is sealed;
2. IBM was asked if it would be willing to provide affidavits from the Board of Directors and their executives that they have produced already all the documents they have about Linux, and IBM said they would, so Wells said to do that.

Judge Wells took the rest under advisement. The court hearing minutes (not transcript) are now available from the court. And now for the details.

Details, and this is now a composite from Frank and Chris Brown, who has also added his impressions.

SCO had, from their count, about 12 lawyers there, but only three sat at the table and only two spoke, one of the new attorneys on the case, Sean Eskovitz, and Frederick Frei. The silent third was the other new SCO attorney, Edward Normand. Brent Hatch was there and so was Kevin McBride.

Both Frank and Chris say that Eskovitz did a wonderful job of representing SCO, and they both say he is by far the best lawyer to appear for SCO that we've seen so far, more on David Marriott's level. Both say he was not better than Marriott, but at least this time it seemed a proper match. He was pleasant and clear, maybe not too up on all the details, because it's his first appearance, but what he said, he said well.

They are divided in their opinion of what Wells seemed to accept, with Chris thinking she might well give SCO a bit more discovery, while Frank said he couldn't really tell how she was leaning, if she was, except for one thing. They both report that SCO pulled something that she didn't seem to like and that seemed to make Marriott angry. SCO read from a confidential email, out loud, in open court. I won't report on the details of that, because I think it would be wrong. IBM pointed it out to the judge, and when SCO again tried to read more, the judge curtly cut him off.

Both think, from what was said in court today by SCO that the 3rd Amended Complaint probably has to do with AIX for Power code, that SCO alleges IBM didn't have a license to put AIX System V code into AIX for Power. Groklaw presented some research on that very issue back in August, showing that SCO was aware back in 2000 that System V Release 4 code was used in AIX 5L, the successor to Project Monterey, and that it was used in the Power platform. We deduce it because we found SCO displaying on its own website a page mentioning AIX 5L in glowing terms, including telling about its own contributions to AIX 5L, not to Project Monterey, and also mentioning that AIX 5L worked on Power and that it included System V Release 4 code.

SCO referred to 1992 depositions by David Frasure and Otis Wilson in the BSDi case, which Groklaw has obtained and will be presenting to you later this week, and they claim the depositions contradict their testimony about derivative code in this case. (But the simple fact is, both Frank and Chris pointed out, the BSDi case was about different code, a different product, and a different license. Apparently, IBM did not mention this yet, at least not today in court, but we trust they will at some point, so SCO seems to be comparing apples to oranges.) The privileged email refers to this AIX for Power situation. And that is all I intend to say about that. You can read it in the transcript eventually unless it get redacted. Whatever SCO does, or others do, I respect confidentiality rules on the part of the court, and until it's clear this is public, it isn't, in my view, appropriate to talk about it in public, out of respect for the court.

As you know, motions are in the ABA format, like symphonies. So SCO went first, then IBM, then SCO got to rebut. In this case, IBM got a final minute or so as well. So here are the arguments:

SCO's Opening Argument -- We Need More Code and Here is Why

Sean Eskovitz opened by saying that this is a contract case. What SCO wants is remote access to CMVC for AIX code and notes and the equivalent for Dynix. Why they need it is to prove that IBM violated its contract. He mentioned the email as an example of something that they just happened to stumble upon in boxes of materials IBM provided. If they had access to CMVC, if any programmers were to have left notes about whether they had the right to use the code in Power platform, it would be helpful to SCO in their case. And the fact that this email turned up shows something like that could show up in CMVC. If it's there, they feel they have a right to it. They are not relying on that email itself, however, just using it as an example.

The court ordered IBM to produce certain materials in discovery, and they have failed to do so. They have provided snapshots, but that hasn't allowed SCO to trace the programming history. So they seek CMVC and RCS for Dynix to gain access to draft and unreleased versions and design documents, because it relates to their contract claims.

He referred to the Pfeffer declaration regarding Section 2.01 of the contract agreement saying that it protected the full contents of source code in derivative works and modifications. He then brought up the Frasure and Wilson depositions from 1992, which he says IBM provided but they didn't have time to fully review prior to doing the depositions. They need all the discovery to defend themselves against IBM's counterclaims, specifically counterclaim 9.

SCO's theory is this: If B is a derivative of A, and C is a derivative of B, then C is a derivative of A. SCO owns A, so it owns C, under their theory of what the contract says.

It seems impossible to believe that IBM has turned over all the documents and email from the Board of Directors and the executives, because there is so little. There simply must be more.

Then Mr. Frei spoke. He said he would speak for 5 minutes, but both eyewitnesses timed him independently at 13. He told the judge that it is very easy for IBM to provide access to CMVC. SCO, back in the Project Monterey days, had such access and they had password access to certain areas. They are asking for remote access so that they don't burden IBM. They'd rather go searching for themselves anyway. What they are asking for is about 40 GB of code, and that's no more than a common hard drive on a laptop. It's maybe 10 DVDs, so it's an easy thing for IBM to provide what they are requesting, even if IBM does it themselves. So that's the opening shot, the A section of our symphony.

IBM's Argument - All the Drafts of All the Maps of All the Roads, Built or Contemplated, in China Won't Help SCO Find LA

David Marriott spoke, as usual, for IBM. He reminded the court that SCO has now filed between two and three hundred pages of memoranda about what they want and why they want it, but all the words boil down to only three things: they want a paper trail, they want more from IBM executives and the members of the Board, and they want remote access to CMVC.

He listed five reasons why IBM should not have to provide what SCO is requesting:

1. They asked for this before and it was denied them. Nothing has changed.

2. What they are asking for isn't relevant to their claims. If you want to go from Aurora, NY to Los Angeles, and you ask for a map, you need a map to LA. They not only are demanding that IBM provide them with a map to China instead, they are demanding every draft of all the maps of all the roads that have ever been built and all the ones contemplated but never built in China over the last 20 years. They already have what they need: System V and Linux. Bingo. Their map to LA.

3. SCO's requests place an undue burden on IBM. SCO's attorneys say that it's easy for IBM to comply. While Marriott said he personally is not an expert on CMVC, neither are SCO's attorneys, but IBM's expert witness, Joan Thomas, has already told the court that it *isn't* trivially easy to comply, that it would require many weeks, perhaps months to do what they are asking. As for giving them remote access, it's not a feasible option. It's one thing to grant that to a partner, it's quite another to grant it to an opponent in litigation. There are many other projects, hundreds of them, with proprietary code and information that SCO surely has no right to access.

4. SCO has not produced one shred of evidence of infringing code. Nothing further has been produced because there is nothing to produce. They have it all already. They have been given 900 million lines of code, and there is nothing there, nothing infringing. It won't help to give them now another 2+ billion lines of code, which is what they are requesting.

He referred to the confidential SCO email that refuted the 1999 study and showed that there is no infringing code. He pointedly said that he would not read their confidential email in open court, unlike what they just did with an IBM confidential email. He handed it to the judge instead.

He added that Judge Wells ordered that they get the AIX code that IBM produced within a week of the order. They were supposed to look at it, find infringing code and then on the basis of any infringement, ask for more discovery related to that infringing code, specific files, they found. But they didn't find any infringing code.

5. All these issues about AIX and Dynix are before Judge Kimball already in connection with IBM's motions. Marriott pointed to a stack of papers about 2 feet tall in front of IBM attorney's Todd Shaughnessy, at the table. That, he said, is everything that is before Judge Kimball on these very issues. He has the matter more fully before him. If he finds for SCO, then it would be appropriate to come back and argue these matters before Judge Wells, but not now. He pointedly said it was not Judge Wells' decision to make at this point, because if Judge Kimball finds for IBM on their motions, it's all moot. There could conceivably be conflicting rulings if both Wells and Kimball decide the same issues independently.

As for the seeming lack of emails from the Board of Directors and executives, that is actually quite normal. They don't have any more. When IBM asked SCO for the equivalent discovery, SCO said that Darl McBride infrequently uses email, so why is it hard for them to accept that IBM executives also have no email to turn over? IBM would like SCO to provide equivalent discovery from their executives and Board.

Counterclaim 10 compares SCO's code to Linux. IBM then pulled out SCO's own chart from an earlier appearance showing HP, Sun and IBM as being licensees. IBM pointed out again that SCO declared HP and Sun free and clear without needing production of code. Why is IBM any different?

SCO's Rebuttal

Eskovitz then spoke again. As he was called on, Judge Wells asked him to address the question of how SCO's 3rd Amended Complaint affects these discovery matters. This is the part that gets interesting, and from what I've heard so far, I suspect that SCO added the 3rd Amended Complaint when they did because they hope it will get them over and get access to the code they have been pining for since this all began. Their problem is, IBM hasn't yet, to my knowledge anyway, replied, so I can't quite see how it relates to this hearing. But discuss it they did. SCO's position was that they need the discovery in connection with their contract claims, and they seemed to be distancing themselves from Linux and talking more about IBM and whether or not they had the right to use AIX code, which SCO defines in totality as derivative of Unix System V, something IBM obviously disputes, for AIX Power platform. SCO needs the discovery because of IBM's counterclaim 9. SCO wants to show that IBM overstepped their license in their use of AIX code to AIX Power. [Marriott had already said IBM was willing to stipulate that counterclaim 9 was limited to whether or not IBM infringed SCO's copyrights in AIX and Dynix, excluding the Power platform, an issue that obviously was not being contemplated anyway when IBM wrote the counterclaim, because it was not in the case. Marriott personally wrote that counterclaim and he knows what he meant.] SCO said, Sure, they'd like to limit it now, to exclude the AIX Power code. Of course, they'll do that now. And IBM is trying to say that Judge Wells has no right to control her own court. This matter is before her.

IBM's Last Word

SCO's copyright theory of derivative code is bogus. IBM never said that Judge Wells wasn't in control.

Judge Wells then listed the two things, above, that she wanted, and IBM asked if SCO could be ordered to provide affidavits from their executives and Board, and Judge Wells said not at this time, because there was no motion requesting it formally.


Bob Mims' coverage is here. And Pacer reports that SCO has finally decided to depose somebody:

10/18/04 -- 325 Certificate of service re: ntc deposition David Bullis by SCO Grp (blk) [Entry date 10/19/04]

10/18/04 -- 326 Certificate of service re: ntc deposition William Sandve by SCO Grp (blk) [Entry date 10/19/04]

Info on Mr. Sandve, who I think has a great face, here.