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Wednesday, October 8, 2003

IBM's Motion to Compel Discovery: What Trade Secrets Are You Talking About?
Here is IBM's Motion to Compel, as a pdf, thanks once again to Frank Sorenson. Here's another one. And here is IBM's Memorandum in Support of their motion, which is where IBM explains its position and cites all the cases it can think of and the law that supports its side of the argument. Thanks go to Peter Frouman. (We only have the first 9 pages of it, but the rest will come later. -- Done. The link is now to the complete Memorandum.) And here is an Addendum to the Memorandum. Enjoy!

We're reading it together at the same time, because I just now got it. What I see so far is IBM is asking SCO to specify precisely what trade secrets it accuses IBM of having misappropriated. They are asking them to tell them exactly what source code is involved. They point out it's been six months since the lawsuit was filed, and they still don't know with any particularity what the accusation is about:

"In a case relating to software, such as this case, a defendant is entitled to know the files and lines of code it is alleged to have misappropriated. A plaintiff may not persist in vague assertions about the substance of the claimed secret and leave the defendant to guess at the basis of the lawsuit."

Hear, hear! I've read some of the Exhibits, and SCO's position appears to be in part that IBM already has the code and that they want confidentiality preserved. That again, to which IBM says, fine to the confidentiality, but it continues to press for the particular code. IBM points out in the Memorandum that in its marketing, such as the SCOForum, SCO showed specific lines of code, but in discovery, it hasn't mentioned one line of code but instead mentioned "non-literal transfers" of "methods". So, it's "put up or shut up" time at last, it seems. IBM has requested oral argument. That means both sides have to show up and actually present their arguments to the judge, not just on paper. I'd so love to be there for that.

Thank you, Frank. Thank you, too, Mrs. Sorenson, for putting up with Groklaw. We have more documents too that Frank got for us, the Exhibits, but it'll take a while to get it all up for you. Meanwhile, enjoy what we already have available.

On the Red Hat front, if anyone in DE is passing by the courthouse, here is what is new:

9/30/03 14 Letter to Clerk from A. Poff re DI # 13; problems with formatting and minor typographical errors; enclosing a corrected version of the brief (ft) [Entry date 10/01/03]

10/2/03 15 MOTION by SCO Group Inc. to Stay Discovery Pending Resolution of Motion to Dismiss Answer Brief due 10/16/03 re: [15-1] motion (ft)

10/3/03 16 STIPULATION to extend time for deft. to file reply brief in support of Motion to Dismiss; with proposed order (ft)

10/6/03 -- So Ordered granting [16-1] stipulation reset Reply Brief Deadline to 10/10/03 re: [8-1] motion to Dismiss ( signed by Judge Sue L. Robinson ) Notice to all parties. (rd)

UPDATE: Here are the exhibits we promised:

Exhibit A - IBM letter April 2, 2003
Exhibit B - IBM letter May 5, 2003
Exhibit C - Maureen O'Gara LinuxWorld story

Exhibit D - Defendant IBM's First Set of Interrogatories and First Request for the Production of Documents

Exhibit E - Plaintiff's Responses to Defendant's First Set of Interrogatories and First Request for the Production of Documents

Exhibit G - IBM letter August 27, 2003
Exhibit H - SCO letter September 8, 2003
Exhibit I - IBM letter August 29, 2003

Exhibit J - Plaintiff's First Request for Production of Documents and First Set of Interrogatories

Yes, we seem to be missing Exhibit F, but we're hunting for it.

Try this for Exhibit F - SCOSource Slide Show.

We have arranged to get the DE documents, so no more volunteers are needed.

comment [] 2:37:35 PM    

First City-to-City SCO Show Report Is In, and Yes, It's HP-Sponsored

A guy in Canada is nice enough to fill us in on the SCO Show from its first stop there:

"It was mostly a room full of SCO resellers. And they were not too big on having a love in. Nothing hostile, however not one positive comment for the morning's session. During the 'we be so profitable' section of the spiel, one reseller in the crowd asked 'where does the money come from?' The response was largely a pointer to the SCO source initiative. The response? 'What you are profitable in will not make me profitable.' Wow. That was good. One raised the points that this quibble is hurting his business. SCO's stance is that they'd love to settle this tomorrow (har har). Stance not bought by aforementioned reseller - the paraphrased retort was 'litigation will resolve nothing that I am interested in. SCO needs to adapt to the times, or it will perish'. Wow wow. People seem to get this. I like it.

"I now know how retro SCOs OSes are. Riotous, riotous stuff. How they had the ya-yas to declare Linux an infant OS in need of their IP is beyond me. Upcoming features? PAM. files larger than 2 gigs. NFS over TCP. The 80's called, they want their features back. NTPv4 was a listed big feature on a slide of 10 to 15 upcoming enhancements. How does an NTP enhancement get mentioned as a 'big' feature? Wow. I never knew it was this bad. Maybe I should lend my old 486 running Debian from '97 to Pizza Hut - it sounds like they could use the upgrade. Even the guy presenting was a leelte embarrassed by the state of the OS. When mentioning PAM support his comment was "finally!". A crowd member picked up on this & asked "when you say 'PAM - finally!', who are you implying you are behind?". The response was pretty generic, other than to point out that rigorous certification testing was a portion of the delay. Also of note was the volume of OpenSource software in the box - OpenSSL/SSH, Apache, Samba, CUPS, Gimp-print, bash ... you name it. Maybe their idea of building a super-OS involves a fistful of RPMs. He tried to convey his amazement at the fantastic future of UnixWare by telling the crowd that they would someday be able to print in colour from their colour printer (thanks to features in gimp-print)."

I don't want to burst any SCO bubbles, but if McBride is right when he said, "At the end of the day, the GPL is not about making software free; it's about destroying value," why then, are is SCO distributing Samba and the Gimp, both GPL'd software?

Guess how many people showed up? Less than 20. That left more than 40 seats empty. And yes, HP is a sponsor, he says. A Groklaw reader, mdchaney, called Blake Stowell today, and he confirmed:

"I just called Blake Stowell at SCO and asked if HP was sponsoring the road show. He said that they definitely were. I asked why their name wasn't on the web site. His response was that they had asked to have it removed from the web site, but they were definitely still a sponsor. HP just lost a laptop sale."

If you're curious about just how behind the times System V was in 2001 compared to other UNIX versions, you might find this "2001 UNIX Function Review" of interest, available as either a pdf or as html. They came in dead last, comparing Solaris 8, HP-UX 11i, Tru64 UNIX 5.1, AIX 4.3.3, and UnixWare 7.1.1. On page two of the document, comparing scalability, it says this about UnixWare:

"UnixWare's scalability fundamentally depends on the capabilities of the Intel server architecture, which will not complete its transition to 64-bits until later this year. UnixWare supports advanced enterprise servers based on current IA-32 processors, including the Unisys ES7000, a mainframe-class machine. UnixWare can be configured with up to 32 processors and up 64 GB of memory. Although UnixWare supports all 32 processors in ES7000, the maximum SMP configuration for which UnixWare has produced credible database benchmark evidence is eight processors. As with AIX and Solaris, UnixWare supports file systems and files up to 1 TB."

The only thing the report mentions UnixWare beat out most of the others on (except Solaris) was running Linux applications as binaries. Well, now, isn't that a coincidence?

The timing of the Monterey episode was of interest too. On page 12, it mentions that in late 1998, SCO announced "it would no longer position UnixWare as an enterprise platform when IA-64 arrived, choosing instead to embrace the AIX kernel as the foundation for the next-generation 'Monterey' product." It did this, it says, because"despite its early success in lining up OEM partners, SCO was unable to continue the investments in UnixWare required to compete with the heavyweight UNIX systems from Sun, HP, IBM, and Compaq." So, that SCOStory about IBM ruining their fabulous success isn't matching this report, is it? The report concludes:

"Since then, SCO ... announced that it would sell all of its UNIX products, including OpenServer and UnixWare, to Caldera Systems, Inc."

This just proves, once again, that whatever contract beef they may feel IBM should be one-half of, the other half isn't today's SCO, but the old SCO, which still exists as Tarantella. Then it says that the company plans included staying with IA-32 platforms, and introducing the Linux Kernel Personality for UnixWare to "allow it to run Linux applications":

"Caldera plans to position UnixWare as a kind of super-charged Linux environment that is fully compatible with other Linux distributions, but has more powerful functions under the hood than the traditional Linux kernel. To deliver on this promise, however, Caldera will have to marshal sufficient development resources to keep up with the investments of the established enterprise competitors."

So when SCOfolk say they don't plan on killing Linux, could it be they mean it, that they plan on prostituting it for their benefit instead? But that marshalling the resources part. That's the fly in the ointment. Marshalling resources...hmm. Oh, you mean like with a lawsuit?

comment [] 3:57:08 AM    

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