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Tuesday, November 4, 2003

SCOForum Slides vs. SCO's Memorandum -- A Closer Look In SCO's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery, there is one section entitled "IBM's Characterization of the Presentation at the SCO Trade Show is False and Misleading." Let's examine this one paragraph and see if that is true or if the shoe is on the other foot. In order to do that, we'll be comparing what SCO wrote in its Memorandum with the slides in SCO's SCOForum presentation. In order to follow along, you will likely wish to look at the slides themselves. If you go here you can find them as a Powerpoint presentation, and they can be viewed here as html. You can alternatively go to this page where we covered IBM's Motion to Compel Discovery, and you will find links to the Motion, the Memorandum of Law in Support, and all the exhibits, including the SCOForum slideshow. I will present text from the slides as appropriate so you can follow along without skipping back and forth. First, here is the paragraph from the Memorandum of Law we will be looking at carefully, and I have highlighted the points we will address most particularly to compare with the slides: "1. IBM's Characterization of the Presentation at the SCO Trade Show is False and Misleading. "Throughout its memorandum, IBM makes repeated reference to SCO's trade show and a particular presentation about SCO's contractual rights made at that trade show. IBM incorrectly asserts that during that presentation, SCO identified 'four categories of alleged "misappropriation" by IBM: (1) literal coping; (2) derivative works; (3) obfuscation; and (4) non-literal transfers.' (IBM Mem., p. 6)(parentheticals omitted). The slides from the SCO Forum trade show relied upon by IBM (IBM Mem., Exhibit F), corroborate that SCO has not publicly made any such allegation against IBM. Slide 8, which is the only one to contain the terms 'literal copying,' 'derivative works,' 'obfuscation,' and 'non-literal transfers' does not mention IBM, or indeed anyone else. In fact, Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action. What makes IBM's use of this trade show material particularly misleading to this Court is that the code in question identified by SCO at the trade show and elsewhere was code from a licensee other than IBM. In fact, it was widely reported after the trade show that the example of improperly contributed code was from SGI, which has since publicly acknowledged its improper contribution. It is inconceivable that IBM is unaware that the code identified by SCO in its presentation was from SGI, not IBM. In any event, as code contributed by another licensee, it should be obvious to IBM that, despite its demands for this code, the identity of such code is not responsive to any of IBM's interrogatories." As you can see, they accuse IBM of misleading the court. Let's see who is misleading whom, and we'll take it a piece at a time and look at the slides as we go along. First, SCO claims that the presentation was about contractual rights: "Throughout its memorandum, IBM makes repeated reference to SCO's trade show and a particular presentation about SCO's contractual rights made at that trade show." So, it's about contractual rights overall, according to SCO. However, a little further down, SCO characterizes Slide 8 as being a list of SCO's bases for a potential copyright infringement action: "Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action." They appear to be distinguishing Slide 8 from the rest of the presentation, saying this particular slide wasn't about contractual matters or trade secrets, rather about copyright, which they haven't accused IBM of. And in fact they pointedly say that IBM is not mentioned at all on Slide 8, and that further it's the only slide that mentions the four infringement terms IBM says SCO has accused them of and which SCO here is denying having ever publicly accused IBM of having done: "IBM incorrectly asserts that during that presentation, SCO identified 'four categories of alleged "misappropriation" by IBM: (1) literal coping; (2) derivative works; (3) obfuscation; and (4) non-literal transfers.' (IBM Mem., p. 6)(parentheticals omitted). The slides from the SCO Forum trade show relied upon by IBM (IBM Mem., Exhibit F), corroborate that SCO has not publicly made any such allegation against IBM. Slide 8, which is the only one to contain the terms 'literal copying,' 'derivative works,' 'obfuscation,' and 'non-literal transfers' does not mention IBM, or indeed anyone else. In fact, Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action." This may come as quite a surprise to those of us who have followed this story closely from the beginning, because it feels like that's all we've heard SCOfolk say and imply for about seven months. If you look at Slide 8, it's true that IBM is not mentioned by name on that slide. Here is the text: "8. SCO UNIX System V Copyright Infringements in Linux® "Linux is a registered trademark of Linus Torvalds "Contracts, Agreements, and the Law "Non-literal transfers "Methods, structures and sequence from System V contributed to Linux kernels 2.4+ "Obfuscation "Copying, pasting, removing legal notices, reorganizing the order of the programming structures "Derivative Works "Modifications of System V created by vendors contributed to Linux kernels 2.4+ in violation of contracts "Literal Copying "Line-for-line code copied from System V into Linux kernels 2.4+" They are telling the judge that this slide is only about copyright, apparently so as to claim it couldn't be an accusation about IBM. But what does the slide itself say? -- "Contracts, Agreements and the Law." So is it really only about copyright? What did the author of the slide believe? As for their claim that this is the only slide to mention these four terms, this is a rather slick argument. It is true it is the only one to mention all four together on the same slide, but as you go through the slides one by one, you will see that in fact this Slide 8 is a summary of the four terms, but subsequent slides, beginning with Slide 9, mention each term in turn, and the subsequent slides give examples of each of these four terms, and the later slides do mention IBM by name, specifically on Slides 21 and 22. For example, let's look at Slide 21. Here is the text: "IBM Claimed Copyright Attribution for Transferring Dynix Code to Linux "Copyright (c) International Business Machines Corp., 2001 This program is free software; you can redistribute it and/or modify  it under the terms of the GNU General Public License as published by  the Free Software Foundation; either version 2 of the License, or (at your option) any later version. This program is distributed in the hope that it will be useful,  but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the  GNU General Public License for more details. You should have received a copy of the GNU General Public License  along with this program; if not, write to the Free Software Foundation, Inc., 59 Temple Place - Suite 330, Boston, MA 02111-1307, USA. Author: Dipankar Sarma   (Based on a Dynix/ptx implementation by  Paul Mckenney ) "See: http://lse.sourceforge.net/locking/rcu/patches/rclock-2.4.1-01.patch   "Derivative Works" This Slide 21, then, is an example they offer in the category of "derivative works" and IBM's name is used in the title. If Slide 8 is only about copyright when it mentions "derivative works" and it has nothing to do with IBM, what is this Slide 21 talking about? What about the next slide, Slide 22? It's an example of "non-literal transfers", another of the 4 terms listed in Slide 8, and again IBM is mentioned by name: "Non-Literal Transfers - Methods and Concepts "From: Niels Christiansen (nchr@us.ibm.com) "Date: Thu Dec 06 2001 - 11:10:47 EST     "Hi Kiran, "Are you concerned with increase in memory used per counter Here? I suppose that must not be that much of an issue for a 16 processor box....  Nope, I'm concerned that if this mechanism is to be used for all counters, the improvement in cache coherence might be less significant to the point where the additional overhead isn't worth it. "...which may be true for 4-ways and even 8-ways but when you get to 32-ways and greater, you start seeing cache problems. That was the case on AIX and per-cpu counters was one of the changes that helped get the spectacular scalability on Regatta. "Niels Christiansen "IBM LTC, Kernel Performance "Non-Literal Transfers [^] Methods and Concepts" Whether this email can legitimately be used to prove an infringement is another discussion, but it is clear they used it for that purpose, and they pointed at an IBM employee. "Non-literal transfers" is one of the four terms on Slide 8, and this is an example of such a transfer, according to SCO, and yet they tell the judge that Slide 8 isn't about IBM? Derivative works are also the topic addressed on Slide 18, "Use is Infringing if Scope of License Grant for Derivative Work is Exceeded", and Slide 19, "Examples of Significant Infringing Derivative Works Contributions to Linux 2.4/2.5", both listing NUMA, RCU, JFS, and XFS, and one adds NUMA and the other adds "Schedulers, Linux PPC 32- and 64-bit support, and Enterprise Volume Management System". Obviously, IBM is at a minimum under a cloud in this list. And Slide 20 lists exact numbers of files and lines of code under the title "Derivative Works" for RCU, NUMA, JFS, SFX, and SMP for a precise total of 1,549 files and 1,147,022 lines. Maybe more than a cloud, considering what Aberdeen Group analyst Bill Claybrook wrote SCO told him: "One example of derivative code that SCO says IBM has released to Linux is IBM's AIX journaling file system (JFS) . . . Two other examples of derivative code that SCO says IBM has released to Linux is NUMA (nonuniform memory access) code and RCU (read, copy, and update) code developed by Sequent prior to IBM's acquisition of Sequent in 1999." What about the other two terms on Slide 8, line-by-line copying and obfuscation? Let's take a look. Literal copying is handled on several slides, not just one. Slides 9-14, to be exact. SCO's assertion is that the code they showed later turned out to be SGI code, not IBM, so IBM has no reason to ask for SCO to hand it over in discovery. But if you look at the slides titled "Literal Copying", each one says this: "Line by Line Copying [~] One Example of Many", so SCO is pretending there was only one code example used at the slide show but we see several examples and in any case, the examples used were presented as just a sample of many others SCO could show. IBM is asking to see all of them, not just the sample code that turned out to be SGI code. Obfuscated copying is addressed on Slide 15, but not being a programmer, I'm not qualified to analyze this slide. Others have already done so. With regard to the code examples later turning out not to be IBM code, the issue isn't what they turned out to be, but what SCO represented them to be at their slide show. We presented news articles of the show in our article on Saturday, SCO Tells IBM: No, You Show *Your* Code First that indicated that what SCO representatives said at the show was that IBM was guilty of infringement, and that was what attendees expressed their understanding was from the presentation. So we need not cover that ground again here, except to repeat this small example: "At the SCO Forum on Monday, the company pulled out its latest weapon: lines and lines of disputed code that were allegedly copied from SCO's Unix into IBM's version of Linux. The company claims that IBM illegally copied Unix code into its version of Linux . . . " But that isn't the only time SCO has accused IBM of infringing their IP. They accused IBM of directly copying their System V code into Linux, according to two news articles, first one in MozillaQuest, which quoted analyst Bill Claybrook as saying SCO told him IBM was a violator: "I don't have a list of any of the alleged violators, except SCO did say that IBM has copied Unix System V code into Linux. I personally find that hard to believe because IBM has one of the best screening processes of any major supplier for making sure that code does not move into Linux. And SCO said no to IBM's copying the first time I asked the question and then several hours later changed their answer to the one that I just gave." Here is the Newsfactor account: "'I specifically asked SCO if they had any evidence that IBM directly copied System V source code into Linux. The reply was no,' Claybrook wrote in his report. 'SCO has subsequently changed that reply to, "We have that code but we have not presented it at this time."' "When asked if the confusion about this issue is odd, given that this is the central tenet of SCO's lawsuit against IBM, Claybrook agreed. 'Whenever I asked the question, Chris Sontag, the VP there, told me no,' Claybrook said. 'But then I got an e-mail 8 to 10 hours later from Blake Stowell, director of PR, that said they had "misspoken" -- they did have evidence that IBM had directly copied code.'" Here's what Darl McBride said on 07/03/2003 according to The Register: "IBM has taken our valuable trade secrets and given them away to Linux." In the press release SCO put out when it "terminated" IBM's AIX contract, McBride said IBM was continuing to "violate our source code". And SCO's attorney Mark Heise said: "Through contributing AIX source code to Linux and using UNIX methods to accelerate and improve Linux as a free operating system, with the resulting destruction of UNIX, IBM has clearly demonstrated its misuse of UNIX source code and has violated the terms of its contract with SCO." And here McBride made a direct accusation: "In the last 18 months, we found that IBM had donated some very high-end enterprise-computing technologies into open-source. Some of it looked like it was our intellectual property and subject to our licensing agreements with IBM. Their actions were in direct violation of our agreements with them that they would not share this information, let alone donate it into open-source. We have examples of code being lifted verbatim. "And IBM took the same team that had been working on a Unix code project with us and moved them over to work on Linux code. If you look at the code we believe has been copied in, it's not just a line or two, it's an entire section -- and in some cases, an entire program." When SCO wrote that they have never accused IBM publicly of the four categories of alleged misappropriation, literal copying, derivative works, obfuscation, and non-literal transfers, was that truthful? The accusation ended up in Claybrook's report, and SCO not only didn't correct it, it corrected Sontag's orginal denial that they had proof of IBM's literal copying. And they did it privately too, according to Ian Lance Taylor's report of his visit to look at the code, which report SCO never corrected to the best of my knowledge and, if I remember correctly, I believe McBride actually referred to this account in a teleconference. During his visit, he took notes and says that this is what SCO (mostly Chris Sontag) told him: "SCO has a list of about 20 IBM engineers who are, it claims, using AIX methods in Linux. SCO claims that some of these engineers literally are looking at AIX source code as they discuss Linux issues and making recommendations based on the AIX code. "SCO claims this is inappropriate because everything built on top of AIX or using methods developed in AIX is really a derived work of Unix. As we talked, I realized this is a key part of SCO's argument. SCO claims that anything built on top of Unix is itself a derived work of Unix. I will discuss this further below. "SCO said that besides IBM, Sequent has contributed code to Linux which is derived from Unix. Sequent is now a subsidiary of IBM. "SCO also claims that some of the derivative works IBM contributed to Linux include NUMA, RCU, JFS, SMP, performance measurement and improvements, serviceability, scheduler improvements, LinuxPPC 32 and 64 bit support, logical partition support. Sontag moved on to the next slide before I typed down the rest of the list." Finally, about the SGI matter, SCO characterizes what happened like this: "What makes IBM's use of this trade show material particularly misleading to this Court is that the code in question identified by SCO at the trade show and elsewhere was code from a licensee other than IBM. In fact, it was widely reported after the trade show that the example of improperly contributed code was from SGI, which has since publicly acknowledged its improper contribution." Here's what SGI actually said about the code: "When a question was raised by the community earlier in the summer about the ate_utils.c routine, we took immediate action to address it. We quickly and carefully re-reviewed our contributions to open source, and found brief fragments of code matching System V code in three generic routines (ate_utils.c, the atoi function and systeminfo.h header file), all within the I/O infrastructure support for SGI's platform. The three code fragments had been inadvertently included and in fact were redundant from the start. We found better replacements providing the same functionality already available in the Linux kernel. All together, these three small code fragments comprised no more than 200 lines out of the more than one million lines of our overall contributions to Linux. Notably, it appears that most or all of the System V code fragments we found had previously been placed in the public domain, meaning it is very doubtful that the SCO Group has any proprietary claim to these code fragments in any case. "As a precaution, we promptly removed the code fragments from SGIs Linux website and distributed customer patches, and released patches to the 2.4 and 2.5 kernels on June 30 and July 3 to replace these routines and make other fixes to the SGI infrastructure code that were already in progress at SGI. Our changes showed up in the 2.5 kernel within a few weeks of our submission, and the 2.4 changes were available in the production version of the 2.4 kernel as of August 25 when the 2.4.22 kernel was released. Thus, the code in question has been completely removed. "Following this occurrence, we continued our investigation to determine whether any other code in the Linux kernel was even conceivably implicated. As a result of that exhaustive investigation, SGI has discovered a few additional code segments (similar in nature to the segments referred to above and trivial in amount) that may arguably be related to UNIX code. We are in the process of removing and replacing these segments. "SCO's references to XFS are completely misplaced. XFS is an innovative SGI- created work. It is not a derivative work of System V in any sense, and SGI has full rights to license it to whomever we choose and to contribute it to open source. It may be that SCO is taking the position that merely because XFS is also distributed along with IRIX it is somehow subject to the System V license. But if so, this is an absurd position, with no basis either in the license or in common sense. In fact, our UNIX license clearly provides that SGI retains ownership and all rights as to all code that was not part of AT&Ts UNIX System V." Does that match what SCO said to Judge Kimball about SGI and this code? No? One thing I think we can all agree on. Someone is being false and misleading. I will leave it up to you to decide who. Now, about the "it's not about trade secrets", here is how SCO characterized its lawsuit against IBM in its SEC 10Q filing for the quarter ending April 30, 2003: "On March 6, 2003, the Company filed a complaint against IBM alleging breach of contract, misappropriation of trade secrets, tortious interference, and unfair competition.  The complaint centers on IBM[base ']s activities regarding the UNIX operating system that underlies both the Company[base ']s UNIX-based operating systems and IBM[base ']s AIX, its UNIX-based operating system.  The complaint alleges that IBM obtained information concerning the UNIX source code from the Company and inappropriately used and distributed that information in connection with its efforts to promote the Linux operating system." [emphasis added] And IBM is misleading the court and mischaracterizing the case as being about trade secrets? They said themselves that's what it was about. And they never publicly accused IBM? SEC filings are public. Interviews with the media are public. The SCOForum slide presentation was public. Maybe the explanation is as simple as this snip from an exclusive interview McBride gave: "In an exclusive interview, McBride told vnunet.com that SCO was about to embark on the discovery process of its legal case, when it looks for material related to the case. "'As we move into discovery, this will be very nice for us because now we get to go in and talk to all their people, their customers. We get to really shake things up and get in to find out what really is going on over there,' he said. "McBride claimed that SCO has the right to audit IBM's customers. 'We have other rights under the contract we are looking at. For example, we can audit IBM customers. SCO has audit rights on its customers,' he said. "'The reality is that we are going into discovery right now and that might be the vehicle to be able to investigate what we need there anyway.'" Normally, when I write about the SCOSaga, I try to be entertaining, but I have to confess to being old-fashioned enough that I can't find anything funny or witty to say about this story. You just don't mislead a judge. I'm shocked, actually. Not in the Casablanca-I'm-shocked-shocked kind of way. I mean I'm really stunned by the slide comparison. I keep thinking, maybe I've misunderstood. Maybe it's written so sharply I've missed something. It's possible. I actually hope so. I've never worked for an attorney who misled a judge. This may amaze those of you who hate lawyers, but it's true. The whole legal system is based on honor, corny as that might sound. That is one of the things I like about it. I've seen lawyers lie to their wives, sadly, to their creditors, maybe, to their clients even, but never to a judge. I guess it's true, what Lily Tomlin said. No matter how cynical you get, it is impossible to keep up. comment [] 4:13:38 AM     SCO Tells IBM: No, You Show *Your* Code First It's time to analyze SCO's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery, which we posted as text yesterday. If I had to characterize it in a brief sentence or two, the sentence would be that SCO tells the court, "How are we supposed to know what code IBM misappropriated? It's up to them to prove our case for us. It's not for us to hand over the code; it's up to them to show us every bit of code they ever donated to Linux. Then, we'll go over it and find whatever we can find. And anyway, we've given them plenty of stuff just today, so who needs a motion to compel? Let's just forget the whole thing." In short, they don't want to show the code this exact minute. They bad mouth IBM some more, tell a fib or two, by my reckoning, and then sit down, saying the motion should be denied. Let's go over the document piece by piece. "It has been said that things have both an ostensible and a real reason. Ostensibly, IBM filed its motion to Compel to force SCO to answer interrogatories and produce documents because it had failed to do so. The reality, however, is that SCO not only timely responded to IBM's discovery requests, it then engaged in weeks of lengthy conversation, correspondence, and emails to resolve and clarify discovery issues and ultimately agreed to supplement its responses. But supplemental responses were not all that IBM was seeking. If that were the case, IBM would have waited until today, when supplemental responses were promised and were in fact served. No, what IBM really desired was a forum within which it could construct its stilted and inaccurate mischaracterization of SCO's claims, behind which it could hide its own failure and refusal to provide meaningful discovery responses. As detailed below, IBM's motion is without merit and should be denied." Here SCO tells the judge that there is no need for any Motion to Compel. They told IBM they'd give them their supplemental answers (that they should have given them from the beginning but didn't until after "weeks of lengthy conversation, correspondence, and emails" made them agree to do it) by today. We did, so why did they file a Motion to Compel? There are pretend reasons used as a cover, they say, and then the real reason. And the real reason was so IBM could have a forum to mischaracterize SCO's claims and so it could hide from their own failure to give SCO meaningful answers to *their* discovery requests. In short, the defense is, IBM hasn't answered all our questions either. Never mind that IBM sent its interrogatories to SCO weeks before SCO sent IBM its interrogatories. This is certainly a novel way to respond to a Motion to Compel Discovery. SCO has been accused of refusing to turn over information and documents it must turn over, and their answer is, well, they didn't either. Their secondary answer is that although they had not turned the materials over by the date of the filing of the Motion, IBM should have been able to trust SCO's word. Heh heh. IBM already told the judge in its Motion to Compel that the reason they were filing was because SCO had absolutely refused to tell them that they would produce the materials requested, not that they were pokey. So now, somebody's mistaken or lying. Either SCO told IBM it'd turn over everything IBM asked for by the 23rd, or they refused to commit themselves to doing so, which is IBM's story. So, who do you believe? I think the rest of the document makes clear that when SCO says it offered supplementals, it still didn't mean it would answer all IBM's questions or provide everything IBM asked for. "At its core, IBM's Motion to Compel Discovery asks for answers to interrogatories that fit its own mischaracterized theories of the case, rather than answers that relate to the actual allegations made by SCO in the Complaint." IBM is asking us things that don't relate to our theory of the case as presented in our complaint, they whine. IBM has brought into the picture the statements that SCO has made in the press and at SCOsource showings, and SCO is protesting, as well they must, since they have said a lot more in the press than in the court papers, and not everything they have said in public is going to be helpful in court, so they are trying to keep IBM inside their own complaint's four walls. But SCO seems to forget that IBM has a case also. A counterclaim is a case on its own two feet. Even if SCO withdrew its charges, IBM's counterclaims stand. So IBM can ask away with respect to their own claims, just as SCO has asked for and received materials from IBM. "IBM's baseless arguments begin as an effort to smear SCO and end with a newly created justification of why IBM has failed to provide any meaningful discovery responses itself. While IBM's improper litigation tactics are discussed in detail below, the Motion to Compel can be denied on the simple basis that SCO has actually provided supplemental answers, pursuant to earlier agreement, and this motion is therefore moot." Here, they say, you can deny their motion, because we've turned over our supplemental answers anyway. But that doesn't really cut it, because IBM in its Motion to Compel already told the judge that SCO had offered the supplemental answers but that the answers they planned to give were not all that IBM has requested. And how can the judge possibly know, from this SCO document, what has actually been turned over and whether it is sufficient? Obviously, he can't, and SCO knows it, but they make the argument anyway. "THE LAWSUIT "Contrary to IBM's efforts to recast SCO's Amended Complaint as one limited to trade secret violations, the Amended Complaint contains six counts--the first three counts are for IBM's numerous breaches of licensing agreements. The remaining counts, including Count VI for misappropriation of trade secrets, flow from this transgression and are ancillary to the breach of the license agreements. Thus, notwithstanding IBM's mischaracterization, trade secret misappropriation is not the gravaman of the Complaint (IBM Mem., p. 2), but it is merely one count that recasts one aspect of the injuries caused by IBM's breach. These injuries would exist even in the absence of any trade secret misappropriation." This is a strange argument. They seem to be saying that they aren't actually talking about trade secrets, at least not primarily. What they are really complaining about is breach of the licensing agreements. I note the plural of agreements, but I don't know exactly what they mean by that. If they mean things like Amendment X and the Side Letter, they are surely sunk, and indeed they never refer to either document. It seems someone has bonked them over the head with great force and now they are suffering total amnesia about those two documents, so what they mean by agreements as opposed to an agreement, we'll have to wait and see. What I'm guessing they mean is the Sequent agreement and the IBM agreement, holding IBM responsible for any breach in the Sequent agreement. They could also be referring to the fact that there have been supposedly many, many agreements over the years. Or it's a Freudian slip of the pen, and they do remember the 1985 side agreement and Amendment X, which well they might, since they themselves attached them to their Complaint as exhibits. So, trying to parse the logic of their sentence, they are claiming that their accusation of trade secret misappropriation isn't the main part, or gravamen, of their Complaint. Gravamen means the heart of the argument, the part that the case is really all about. They misspell the word, actually, but I've heard Boies is dyslexic, so perhaps he wrote it that way and no one dared to challenge him. IBM is guilty of "numerous breaches of licensing agreements", and counts one through three list them, they say. The rest of the counts are ancillary to counts one through three, showing one of the aspects of the harm SCO maintained as a result of the breaches. This, of course, makes no sense, but we'll move on, except to note that they don't at all want this case to stand or fall on being able to prove misappropriation of trade secrets, probably because they have no ability to prove IBM is guilty of any such thing. So here they are saying, we were damaged, but we shouldn't have to prove it with respect to trade secret violations. Good luck getting a judge to agree that you don't have to prove one of the claims in your complaint. Here's what Darl McBride said on 07/03/2003: "IBM has taken our valuable trade secrets and given them away to Linux." Here's another quotation, from June 3, 2003, Darl McBride: "'IBM has been happily giving part of the AIX code away to the Linux community, but the problem is that they don't own the AIX code,' he said. 'And so it's a huge problem for us. We have been talking to IBM in this regard since early December and have reached an impasse. This was thus the only way forward for us.'" Oh. So which is it? Is this what the case is about or isn't it? And did IBM mischaracterize the case? Did they have no basis for thinking it was about trade secrets being misappropriated? or are SCOfolk speaking with forked, situational tongues? The problem SCO has is, it has covered the media in press releases and statements for months saying that IBM has done what it now says it wasn't really talking about. They are in a pickle. The code they showed at SCOForum, that they said at the time was proof of IBM's misappropriating their code, turned out to be BSD and maybe SGI code, which IBM had nothing to do with, so they are left with their pants down in front of the judge, and there is a lot of holding newspapers or anything handy in front of embarrassing body parts going on here. "In its Amended Complaint, SCO alleged that IBM and Sequent (now part of IBM and herinafter collectively referred to as IBM) were licensees of UNIX System V source code ('UNIX'). As part of this license grant, IBM was given certain rights and also agreed to certain restrictions upon its use of UNIX. IBM agreed, for example, that UNIX code and methods would be solely for its own internal business purposes (§ 2.01), [1] that UNIX code and methods would not be used for others and by others (§ 2.05), and that IBM would maintain the code and methods related thereto in confidence (§ 7.06). Similarly, IBM further agreed it would not sell or otherwise dispose of UNIX in whole or in part (§ 7.10). Significantly, IBM also agreed that any modifications or derivative works of UNIX prepared by IBM, would be treated by IBM 'as part of the original Software Product.' (§ 2.01). Thus, all of the foregoing restrictions on UNIX also apply equally to any modifications or derivative works created by IBM. [2]" Well, now, everything hinges on what you mean by derivative works. But first, the contract itself. As you can see, the amnesia is interfering with their total recall, poor things. I've heard if you tell historic facts to an amnesiac over and over, sometimes their memories return, so let's give it a try. If they look at their own Exhibit C, attached to their own Complaint, they will find that by means of this Side Letter, IBM was given the right to develop products and services "employing ideas, concepts, know-how, or techniques relating to data processing embodied in SOFTWARE PRODUCTS...provided that the LICENSEE shall not copy any code from such SOFTWARE PRODUCTS...and employees of LICENSEE shall not refer to the physical documents and materials compromising SOFTWARE PRODUCTIONS..." Got that, SCO? Derivative works are not yours, according to this letter, so long as none of your code is in the derivative work, and the confidentiality requirement is lifted on any such code as well by this letter. And as for trying to lasso every programmer's thoughts and methods and ideas, well, that's just silly. That really would be the end of the software business, because no programmer could ever leave his job and go to work for anyone else unless they gave him a lobotomy first. Maybe just a hard bonk on the head would do, but to be on the safe side, a lobotomy is better. I know. Maybe they could just kill all programmers who try to leave their jobs. If SCO shows their code to a programmer, they'd have to kill him to make sure their ideas and methods don't escape with him. This news report indicates that SCO is worried about programmers' memories: "At the time McBride said SCO was concerned that programmers who had signed agreements to see proprietary SCO source code had moved on to other projects and might be incorporating his company's proprietary code into other projects." They just can't build walls high enough around their precious IP, and these programmers are such brainiacs, they might remember methods even if you get them sloppy drunk, and then who knows who they might whisper their secrets to? So, all in all, I think killing them is best for the bottom line. Shareholders expect you to think pragmatically, after all. Outsourcing makes available a seemingly limitless pool of underpaid talent that could be used to fill the shoes of the dead coders, like ants that just crawl right over the corpses of their dead comrades and keep marching forward. There is one problem with this plan. You might think you'd never run out of new coders, but I think it'd be like polluting the ocean. At first, it seems you could never accomplish such a monumental task, but somehow mankind has overcome all odds and achieved it. I think they'd find, similarly, that the hordes of Chinese and Indian programmers, at first a seemingly limitless pool of exploitable, cheap labor, in fact are a finite resource, so I guess we can rule that plan out as impractical long-term. OK, no killing off coders who've seen SCO code. But that leaves SCO with its worrisome problem. How to protect its really old, old ideas? Getting back to planet earth, Section 2 of the letter means, quite simply, that IBM can take code from AIX and give it to someone else, provided that it contains no original System V code. Are they hoping the judge doesn't read? Doesn't know about Exhibit C? It's very puzzling they don't even mention it, unless they have some reason up their sleeve why they don't agree with this interpretation of the side letter. "Pursuant to these restrictions, IBM agreed that AIX, IBM's 'own version of UNIX' (IBM Mem., p.2 n.1), and Dynix, Sequent's version of UNIX, would be used solely for internal business purposes, would be maintained in confidence, and would not be disposed of in whole or in part. IBM, contrary to these clear and unambiguous limitations on its use of UNIX, including modifications and derivatives thereof, has publicly touted its contributions of AIX and Dynix into Linux, the free, 'open source' operating system that IBM has heavily supported, both financially and technologically. [3] Specifically, IBM improperly contributed these protected UNIX materials into the Linux 2.4 and 2.5 kernels (in lay terms, the 'brain' of the operating system)--a decidedly public disposition of these protected materials. This action is a clear breach of IBM's obligations under the agreements with SCO governing the use of UNIX, and derivatives such as AIX and Dynix." This is the gravamen of their current claim, then, that IBM was supposed to keep code confidential and instead it made it public by donating it to open source. seems a lame metaphor for kernel. They call it a kernel because the word is, in itself, a description of what it is. But why quibble? And anyway, we want to plow forward, and this is only the end of their preamble. Now comes their actual response to IBM's motion. "IBM'S MOTION "IBM's Motion begins with a seven page 'preliminary' statement that makes unfounded attacks on SCO and its counsel. This gratuitous commentary was inserted by IBM in the apparent hope that innuendo and sniping may add weight to its motion. IBM begins by claiming 'SCO has obfuscated its claims to foster fear, uncertainty and doubt about its rights and the rights of others.' (IBM Mem., p. 3). In fact, SCO has done nothing other than assert its contractual and legal rights. [4]" Heavens to Betsy! Do you mean to tell me IBM has used innuendo and sniping and unfounded attacks? Why, this is an absolute outrage. Call the police. SCO would never do such a thing, so righteous indignation is understandable and very appropriate for them. You can practically see them shaking with the anger of the upright wronged. Either that, or they hope Judge Kimball doesn't read Groklaw. "IBM then incorrectly attributes as a purported quote from SCO's counsel that SCO 'doesn't want IBM to know what they [SCO's substantive claims] are.' Even a casual review of the article IBM relies upon (IBM Mem., Exh. C) reveals that no such statement was made by SCO's counsel. Indeed, the one paragraph 'article' is nothing more than a gripe by a reporter who failed to obtain information from counsel about the case. More importantly, SCO's counsel, through communication with IBM's counsel and through its Amended Complaint, has made perfectly clear to IBM what its substantive claims are. That IBM chooses to ignore the statements and the actual claims detailed in the Amended Complaint does not give rise to a motion to compel. [5]" Didn't they get the news that Groklaw has a searchable database of quotations? As lawyers say to witnesses on the stand when they pretend they have forgotten something, would this refresh your memory? This is what the reporter Maureen O'Gara wrote about what she described in the March 21, 2003, article as a charming conversation with Mark Heise by phone: "We had a charming conversation with the lawyer who's handling the SCO v IBM suit for SCO, a guy by the name of Mark Heise in the Florida office of Boies, Schiller & Flexner. His wife is expecting their first child any minute now. It's safe to say we now know more about his wife's pregnancy than we do about any substantive claims SCO can make against IBM. Heise claims to have them - and isn't proposing to go on discovery fishing expedition - but doesn't want IBM to know what they are. At the time, and this was a week ago, he said he had spent more time talking to us than to IBM, that there had been no contact." As you can see, she wasn't griping about not getting any info about the case. She was saying that Heise told her something, and what he told her was that he didn't want IBM to know what SCO's claims were. Ms. O'Gara is a reputable reporter. And SCO is misrepresenting what she reported. Additionally, there is this confirmation of Heise's position in a quotation by Darl McBride back in January: "'We feel very good about the evidence that is going to show up in court. We will be happy to show the evidence we have at the appropriate time in a court setting,' McBride said. 'The Linux community would have me publish it now, (so they can have it) laundered by the time we can get to a court hearing. That's not the way we're going to go.'" "The 'Preliminary Statement' repeats over and over that SCO purportedly has failed to answer the series of questions arising from the 'trade secrets and any confidential or proprietary information that Plaintiff alleges or contends IBM misappropriated or misused.' SCO, however, previously provided appropriate answers. Nonetheless, SCO has filed supplemental answers to interrogatories, served today consistent with its agreement to do so, which specify the source code files that contain the information IBM and Sequent agreed to maintain as confidential and proprietary." This is a trick answer. Here, SCO says IBM is accusing them of not answering their questions, but SCO says they did, too, answer. And then they agreed to answer them better and have now done so, so as of today, SCO has provided IBM with the specifics about which files they allege are infringing....Nah. Just checking to see if you were still awake. They don't say any such thing, and they didn't turn over the info IBM asked for. They told them instead exactly which source code files "contain the information IBM and Sequent agreed to maintain as confidential and proprietary." That's not the same thing at all. That would be every line of code, if you stop and think about it. It's all, according to them, confidential and proprietary, even programmers' thoughts. And, excuse me, but that isn't what IBM asked for. What they asked for, as SCO acknowledges, is "to answer the series of questions arising from the 'trade secrets and any confidential or proprietary information that Plaintiff alleges or contends IBM misappropriated or misused.'" This is SCO dancing as fast as it can. It wants the judge to think they have complied when they have not. They still haven't shown the code they think is infringing. "Much of this information was developed by IBM and Sequent and, pursuant to their license agreements with SCO, both IBM and Sequent agreed it would be held as confidential. As a result, some of the information IBM requested will be known only to IBM, so the specifics of who at IBM was involved with improperly contributing this code to the public, how they did so, and the like will not be known until SCO gets the information from IBM, the party who contributed the protected materials in violation of its contractual obligations. "Such a situation does not create grounds to grant a motion to compel. As the court explained in a case cited by IBM, O'Connor v. Boeing N. Am., Inc. 185 F.R.D. 272,281 (C.D. Cal. 1999), a toxic tort case, 'the clear inference from the reponse is that [respondents] do not yet know exactly how they were exposed to contaminants, but exposure occurred. When additional information is known to [respondents], they must supplement their response under Rule 26(e).' Likewise, SCO is presently attempting to ascertain, through the interrogatories and requests for production it has propounded to IBM, the associated background information and details that it needs to prepare its case as well as to fulfill IBM's request. Thus, to the extent certain portions of the answers are not currently available, they can be supplemented upon receiving the information from IBM, the party that improperly made the contributions to Linux in violation of its obligations to SCO and the party that presumably can identify who at IBM made the unlawful contributions to Linux, to whom they were made, when they were made, and other related details. To date, however, IBM has failed to provide this information, despite its agreement and obligation to do so." Huh? They don't know of any infringing code, but they just know it must be in there somewhere? They want IBM to show them the smoking gun so SCO can build its case? Their argument is: we can't tell you what code is infringing, because you haven't told us yet. IBM wrote the code themselves, so we don't know what they wrote, but it must be ours. We hope to find it after IBM answers our interrogatories, and if we do, then we'll tell IBM where it is. On that basis, they say the motion need not be granted. What happened to the spectral analysts and the MIT mathematicians and the physicists who deep-dived, as McBride put it, and analyzed the code and found "millions" of lines of infringing code? Just a couple of days ago, McBride said the same thing in a French interview, and now they don't know of any specific lines of infringing code? This is a new tack. They use a toxic tort case, meaning someone got hurt by a toxin of some kind, and say, "That's us, your honor. We've been hurt, but we aren't sure yet exactly where." Here's what they used to say, first Heise: "We're educating the public in general that, well, there is in fact infringing code, both direct line for line and obfuscated code, derivative works, non-literal -- it's there. [We] just don't want the rest of the world to believe that it's not [there], that this is some sort of smoke and mirrors. It's not." Now, they say it *is* smoke and mirrors, and the smoke won't clear without IBM stepping up to the plate and showing where their crime is hidden. SCO is complaining that IBM did not keep the code confidential, yet they can't find it because IBM kept it so confidential SCO can't locate it. But here is what they told attendees at SCOForum: "Those prepared to sign a non-disclosure agreement were treated to select chunks of code that SCO claims were copied from its Unix operating system into IBM's version of Linux. . . . "At the SCO Forum on Monday, the company pulled out its latest weapon: lines and lines of disputed code that were allegedly copied from SCO's Unix into IBM's version of Linux. The company claims that IBM illegally copied Unix code into its version of Linux, and it's warning Linux customers that they may be violating copyright by using the operating system without paying SCO. It's also recently rolled out a new licensing plan that would require Linux customers to pay between $199 (£125) and $699 per computer. . . . "As of the end of the day on Monday, more than 150 had seen the code presentation, which the company said includes a small portion of the infringing code it's found so far. Sontag said the company has uncovered more than a million lines of copied code in Linux, with the help of pattern recognition experts. "A compelling case? According to those who viewed the code at SCO Forum, company representatives showed off several categories of code that allegedly infringed its copyrights, including some lines that appeared to be directly copied, some that were derivative works, and some that were obfuscated, such as code from which legal disclaimers had been removed. . . . . "After viewing the code, Don Price, the general manager of Price Data Systems, said he was surprised at the volume that was allegedly copied. 'It's compelling,' he said. 'Some people were either extremely sloppy, or copied and thought no one would go after them.'" "Neil Abraham, with SCO reseller Kerridge Computer, said SCO made the right decision to pursue IBM. 'I think they've got a very firm case,' he said, after looking at the code. 'It's not just one line. It's huge chunks.'" OK. That was then. This is now. And now, SCO with a straight face tells the judge they just don't know where infringing code might be hiding. That's why they haven't turned it over. "As noted earlier, because SCO long ago indicated it would supplement its answers to interrogatories, IBM's motion should be denied as premature. Having provided the supplemental answers, IBM's motion is also rendered moot. Under these circumstances, normally there would be no further reason to address any of the remaining statements in IBM's memorandum. Here, however, IBM has advanced two arguments that so egregiously distort the facts and circumstances of this case that SCO is forced to respond." This is just the sum-up of why they feel the motion should be denied: it's too soon, they've already provided supplemental answers, and IBM's motion is moot. If you weren't convinced already, this won't do it either. But now they launch into a counterattack on IBM. They are "forced" to do it because of two arguments IBM has made. "1. IBM's Characterization of the Presentation at the SCO Trade Show is False and Misleading. "Throughout its memorandum, IBM makes repeated reference to SCO's trade show and a particular presentation about SCO's contractual rights made at that trade show. IBM incorrectly asserts that during that presentation, SCO identified 'four categories of alleged "misappropriation" by IBM: (1) literal coping; (2) derivative works; (3) obfuscation; and (4) non-literal transfers.' (IBM Mem., p. 6)(parentheticals omitted). The slides from the SCO Forum trade show relied upon by IBM (IBM Mem., Exhibit F), corroborate that SCO has not publicly made any such allegation against IBM. Slide 8, which is the only one to contain the terms 'literal copying,' 'derivative works,' 'obfuscation,' and 'non-literal transfers' does not mention IBM, or indeed anyone else. In fact, Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action. What makes IBM's use of this trade show material particularly misleading to this Court is that the code in question identified by SCO at the trade show and elsewhere was code from a licensee other than IBM. In fact, it was widely reported after the trade show that the example of improperly contributed code was from SGI, which has since publicly acknowledged its improper contribution. It is inconceivable that IBM is unaware that the code identified by SCO in its presentation was from SGI, not IBM. In any event, as code contributed by another licensee, it should be obvious to IBM that, despite its demands for this code, the identity of such code is not responsive to any of IBM's interrogatories." Sigh. This is like when your kid gets such a knot in his shoe, you hardly know where to begin. First, you just read the SCOForum news report. Is SCO being truthful in saying the slides don't say IBM on them? Yes. But did they verbally say all the things they are now denying? According to the news reports, they did. "Nevertheless, McBride and other attorneys including Mark Heise, another hired gun from Boies, Schiller & Flexner LLP, presented SCO's pending case against IBM, this time to a jury of hundreds of Unix resellers and solution providers gathered at SCO Forum 2003. "The cameras flashed when SCO attorneys briefly highlighted on screen alleged examples of "literal" copyright infringement and improper use of derivative works of Unix System V code that appear in Linux 2.4X and Linux 2.5X. "While it was difficult to ascertain the exact code being shown on screen, attorneys pointed to exact copying of some code from Unix to Linux and claimed that IBM improperly donated almost a million lines of Unix System V code to the Linux 2.4x and Linux 2.5x kernel that infringe on its Unix System V contract with SCO -- and SCO's intellectual property." Those reporting and those attending agree with IBM that SCO accused them. So is SCO being truthful to this judge? Like a car salesman, maybe. They say they have not publicly made any such allegation against IBM.But the news stories prove otherwise. Folks, I mean no disrespect, but don't these allegedly religious men pray at night? If so, how do they raise their eyes to heaven? Judge Kimball strikes me as an honorable man, so maybe there is hope that he will be shocked and disturbed that SCO has the unmitigated gall not only to lie about what it said but to attack IBM for "misleading" the court by pointing out that SCO said it and asking them for proof of the public accusations. Why, the whole world knows it was SGI, they disingenuously say, who wrongfully put that code in, because they have admitted it. First, that isn't what SGI said at all. They said the code appeared to be most, if not all, public domain code. Anyway, whatever happened afterwards doesn't change what SCO said at the show. SCO accused IBM publicly and now they want to pretend they didn't say it. And what they said at the show wasn't the only time they have made such accusations against IBM. Just check our quote database. "2. IBM's Claim It Will Not Respond to Discovery Until It Receives Supplemental Answers is Belated and Improper. "Most problematic is IBM's claim that it cannot repond to discovery until SCO supplements its answers to interrogatories. SCO's discovery requests directed to IBM have been outstanding for four months. Raised for the first time in this motion, IBM's manufactured excuse for failing to respond is absurd and contrary to its previous representations that it will provide the discovery requested. "Now, after mischaracterizing the breadth of SCO's complaint as detailed above, IBM suddenly claims '[w]hether a given document ultimately will be responsive to SCO's extensive requests turns on which trade secrets SCO identifies as being at issue in this case.' (IBM Mem., p 18). No, it does not. The example used by IBM to support its recently created excuse for not providing any additional documents since October 2, 2003, makes clear that whatever may be a trade secret does not limit IBM's obligations to provide full and fair discovery responses. Specifically, IBM points to SCO's Document Request number 11 and claims it needs guidance on the trade secret issue before it can repond. Request 11 is as follows: 'All contributions made without confidentiality restrictions by IBM or anyone under its control including, but not limited to, source code, binary code, derivative works, methods and modifications to Open Source Development Lab, Linus Torvalds, Red Hat or any other entity.' There is nothing on the issue of trade secrets that this Court needs to 'clarify' for IBM to produce this information. As noted earlier, IBM contractually agreed to maintain certain information as confidential and proprietary. That includes all of UNIX System V, UnixWare, IBM's verison of UNIX, called AIX, and Sequent's version of UNIX, called Dynix. IBM cannot unilaterally alter SCO's claims by pretending the clear and unambiguous allegations in the Complaint and contractual obligations detailed therein do not exist. IBM must provide the requested documents and cannot avoid or alter its production obligation through the filing of a Motion to Compel that improperly seeks to alter the claims as pleaded by SCO." This is really low. IBM has told the judge that it can't respond to SCO without knowing what they are accused of specifically. SCO now says this is "absurd", as if it were a novel notion that an accused defendant has the right to know the charges against him. And all these arguments are irrelevant to this motion. SCO didn't bring a Motion to Compel, although knowing SCO, no doubt they'll try that next. This is IBM's Motion to Compel, not the reverse. Why SCO's attorneys inserted all this stuff about IBM not answering is a genuine mystery. It won't mean a thing to anyone, and I'm sure they must know it, unless they are playing to the peanut gallery. SCO has asked IBM to provide all the code it has ever donated to Linux. It makes a big fuss about their failure to do that. Why, the nerve of IBM asking SCO to reveal what trade secrets it has allegedly violated. IBM is saying, you can't just go fishing. Tell us what you think we've done wrong and we will respond. And SCO says, we want to go fishing. Imagine if you could just accuse a software company of wrongdoing and without providing any specifics or having any proof, you could make them turn over all their proprietary code so you could comb through it and try to find infringement. I'd say if courts allowed that, we'd have even more business-model-by-litigation than we already have to endure. Discovery is most particularly not supposed to be abused that way. You aren't supposed to use it as a way to go on fishing expeditions. Anyway, all SCO has to do is go through the Linux code itself and look for IBM copyrights. Or look on the internet. It's all public. "CONCLUSION "Based on the fact that SCO voluntarily supplemented its answers and that IBM's Motion to Compel is premature and wholly inaccurate, SCO respectfully requestes that this Court deny IBM's Motion to Compel." Wholly inaccurate? By what yardstick? There are four footnotes too, but they are self-explanatory. Offensive, but self-explanatory. One footnote requires a reply: "[2] These restrictions are fundamental to any license for software. In the absence of such restrictions and the ability to enforce them, a licensee can simply modify or rewrite code and then give it away thereby eliminating any value of the original source code. Thus, there can be little doubt that the gravaman of SCO's Complaint arises out of these critical restrictions on the use of the software and modifications and derivative works thereof." Um. Did they forget about copyright? That most holy of holy laws? Nobody can take copyrighted code and modify, rewrite it, or give it away. You don't need a license to protect code from that. Shucks. These folks just don't understand IP law. That's the bottom line. Well, never mind. They'll find out. comment [] 4:11:13 AM     SCO's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery Plaintiff's Memorandum of Law in Opposition to IBM's Motion to Compel Discovery October 23, 2003 The SCO Group ("SCO") submits this memorandum of law in opposition to International Business Machines Corporation's ("IBM") Motion to Compel Discovery. INTRODUCTION It has been said that things have both an ostensible and a real reason. Ostensibly, IBM filed its motion to Compel to force SCO to answer interrogatories and produce documents because it had failed to do so. The reality, however, is that SCO not only timely responded to IBM's discovery requests, it then engaged in weeks of lengthy conversation, correspondence, and emails to resolve and clarify discovery issues and ultimately agreed to supplement its responses. But supplemental responses were not all that IBM was seeking. If that were the case, IBM would have waited until today, when supplemental responses were promised and were in fact served. No, what IBM really desired was a forum within which it could construct its stilted and inaccurate mischaracterization of SCO's claims, behind which it could hide its own failure and refusal to provide meaningful discovery responses. As detailed below, IBM's motion is without merit and should be denied. At its core, IBM's Motion to Compel Discovery asks for answers to interrogatories that fit its own mischaracterized theories of the case, rather than answers that relate to the actual allegations made by SCO in the Complaint. IBM's baseless arguments begin as an effort to smear SCO and end with a newly created justification of why IBM has failed to provide any meaningful discovery responses itself. While IBM's improper litigation tactics are discussed in detail below, the Motion to Compel can be denied on the simple basis that SCO has actually provided supplemental answers, pursuant to earlier agreement, and this motion is therefore moot. THE LAWSUIT Contrary to IBM's efforts to recast SCO's Amended Complaint as one limited to trade secret violations, the Amended Complaint contains six counts--the first three counts are for IBM's numerous breaches of licensing agreements. The remaining counts, including Count VI for misappropriation of trade secrets, flow from this transgression and are ancillary to the breach of the license agreements. Thus, notwithstanding IBM's mischaracterization, trade secret misappropriation is not the gravaman of the Complaint (IBM Mem., p. 2), but it is merely one count that recasts one aspect of the injuries caused by IBM's breach. These injuries would exist even in the absence of any trade secret misappropriation. In its Amended Complaint, SCO alleged that IBM and Sequent (now part of IBM and herinafter collectively referred to as IBM) were licensees of UNIX System V source code ("UNIX"). As part of this license grant, IBM was given certain rights and also agreed to certain restrictions upon its use of UNIX. IBM agreed, for example, that UNIX code and methods would be solely for its own internal business purposes (§ 2.01), [1] that UNIX code and methods would not be used for others and by others (§ 2.05), and that IBM would maintain the code and methods related thereto in confidence (§ 7.06). Similarly, IBM further agreed it would not sell or otherwise dispose of UNIX in whole or in part (§ 7.10). Significantly, IBM also agreed that any modifications or derivative works of UNIX prepared by IBM, would be treated by IBM "as part of the original Software Product." (§ 2.01). Thus, all of the foregoing restrictions on UNIX also apply equally to any modifications or derivative works created by IBM. [2] Pursuant to these restrictions, IBM agreed that AIX, IBM's "own version of UNIX" (IBM Mem., p.2 n.1), and Dynix, Sequent's version of UNIX, would be used solely for internal business purposes, would be maintained in confidence, and would not be disposed of in whole or in part. IBM, contrary to these clear and unambiguous limitations on its use of UNIX, including modifications and derivatives thereof, has publicly touted its contributions of AIX and Dynix into Linux, the free, "open source" operating system that IBM has heavily supported, both financially and technologically. [3] Specifically, IBM improperly contributed these protected UNIX materials into the Linux 2.4 and 2.5 kernels (in lay terms, the of the operating system)--a decidedly public disposition of these protected materials. This action is a clear breach of IBM's obligations under the agreements with SCO governing the use of UNIX, and derivatives such as AIX and Dynix. IBM'S MOTION IBM's Motion begins with a seven page "preliminary" statement that makes unfounded attacks on SCO and its counsel. This gratuitous commentary was inserted by IBM in the apparent hope that innuendo and sniping may add weight to its motion. IBM begins by claiming "SCO has obfuscated its claims to foster fear, uncertainty and doubt about its rights and the rights of others." (IBM Mem., p. 3). In fact, SCO has done nothing other than assert its contractual and legal rights. [4] IBM then incorrectly attributes as a purported quote from SCO's counsel that SCO "doesn't want IBM to know what they [SCO's substantive claims] are." Even a casual review of the article IBM relies upon (IBM Mem., Exh. C) reveals that no such statement was made by SCO's counsel. Indeed, the one paragraph "article" is nothing more than a gripe by a reporter who failed to obtain information from counsel about the case. More importantly, SCO's counsel, through communication with IBM's counsel and through its Amended Complaint, has made perfectly clear to IBM what its substantive claims are. That IBM chooses to ignore the statements and the actual claims detailed in the Amended Complaint does not give rise to a motion to compel. [5] The "Preliminary Statement" repeats over and over that SCO purportedly has failed to answer the series of questions arising from the "trade secrets and any confidential or proprietary information that Plaintiff alleges or contends IBM misappropriated or misused." SCO, however, previously provided appropriate answers. Nonetheless, SCO has filed supplemental answers to interrogatories, served today consistent with its agreement to do so, which specify the source code files that contain the information IBM and Sequent agreed to maintain as confidential and proprietary. Much of this information was developed by IBM and Sequent and, pursuant to their license agreements with SCO, both IBM and Sequent agreed it would be held as confidential. As a result, some of the information IBM requested will be known only to IBM, so the specifics of who at IBM was involved with improperly contributing this code to the public, how they did so, and the like will not be known until SCO gets the information from IBM, the party who contributed the protected materials in violation of its contractual obligations. Such a situation does not create grounds to grant a motion to compel. As the court explained in a case cited by IBM, O'Connor v. Boeing N. Am., Inc. 185 F.R.D. 272,281 (C.D. Cal. 1999), a toxic tort case, "the clear inference from the reponse is that [respondents] do not yet know exactly how they were exposed to contaminants, but exposure occurred. When additional information is known to [respondents], they must supplement their response under Rule 26(e)." Likewise, SCO is presently attempting to ascertain, through the interrogatories and requests for production it has propounded to IBM, the associated background information and details that it needs to prepare its case as well as to fulfill IBM's request. Thus, to the extent certain portions of the answers are not currently available, they can be supplemented upon receiving the information from IBM, the party that improperly made the contributions to Linux in violation of its obligations to SCO and the party that presumably can identify who at IBM made the unlawful contributions to Linux, to whom they were made, when they were made, and other related details. To date, however, IBM has failed to provide this information, despite its agreement and obligation to do so. As noted earlier, because SCO long ago indicated it would supplement its answers to interrogatories, IBM's motion should be denied as premature. Having provided the supplemental answers, IBM's motion is also rendered moot. Under these circumstances, normally there would be no further reason to address any of the remaining statements in IBM's memorandum. Here, however, IBM has advanced two arguments that so egregiously distort the facts and circumstances of this case that SCO is forced to respond. 1. IBM's Characterization of the Presentation at the SCO Trade Show is False and Misleading. Throughout its memorandum, IBM makes repeated reference to SCO's trade show and a particular presentation about SCO's contractual rights made at that trade show. IBM incorrectly asserts that during that presentation, SCO identified "four categories of alleged 'misappropriation' by IBM: (1) literal coping; (2) derivative works; (3) obfuscation; and (4) non-literal transfers." (IBM Mem., p. 6)(parentheticals omitted). The slides from the SCO Forum trade show relied upon by IBM (IBM Mem., Exhibit F), corroborate that SCO has not publicly made any such allegation against IBM. Slide 8, which is the only one to contain the terms "literal copying," "derivative works," "obfuscation," and "non-literal transfers" does not mention IBM, or indeed anyone else. In fact, Slide 8 does not mention trade secrets at all, but rather illustrates SCO's bases for a potential copyright infringement action. What makes IBM's use of this trade show material particularly misleading to this Court is that the code in question identified by SCO at the trade show and elsewhere was code from a licensee other than IBM. In fact, it was widely reported after the trade show that the example of improperly contributed code was from SGI, which has since publicly acknowledged its improper contribution. It is inconceivable that IBM is unaware that the code identified by SCO in its presentation was from SGI, not IBM. In any event, as code contributed by another licensee, it should be obvious to IBM that, despite its demands for this code, the identity of such code is not responsive to any of IBM's interrogatories. 2. IBM's Claim It Will Not Respond to Discovery Until It Receives Supplemental Answers is Belated and Improper. Most problematic is IBM's claim that it cannot repond to discovery until SCO supplements its answers to interrogatories. SCO's discovery requests directed to IBM have been outstanding for four months. Raised for the first time in this motion, IBM's manufactured excuse for failing to respond is absurd and contrary to its previous representations that it will provide the discovery requested. Now, after mischaracterizing the breadth of SCO's complaint as detailed above, IBM suddenly claims "[w]hether a given document ultimately will be responsive to SCO's extensive requests turns on which trade secrets SCO identifies as being at issue in this case." (IBM Mem., p 18). No, it does not. The example used by IBM to support its recently created excuse for not providing any additional documents since October 2, 2003, makes clear that whatever may be a trade secret does not limit IBM's obligations to provide full and fair discovery responses. Specifically, IBM points to SCO's Document Request number 11 and claims it needs guidance on the trade secret issue before it can repond. Request 11 is as follows: "All contributions made without confidentiality restrictions by IBM or anyone under its control including, but not limited to, source code, binary code, derivative works, methods and modifications to Open Source Development Lab, Linus Torvalds, Red Hat or any other entity." There is nothing on the issue of trade secrets that this Court needs to "clarify" for IBM to produce this information. As noted earlier, IBM contractually agreed to maintain certain information as confidential and proprietary. That includes all of UNIX System V, UnixWare, IBM's verison of UNIX, called AIX, and Sequent's version of UNIX, called Dynix. IBM cannot unilaterally alter SCO's claims by pretending the clear and unambiguous allegations in the Complaint and contractual obligations detailed therein do not exist. IBM must provide the requested documents and cannot avoid or alter its production obligation through the filing of a Motion to Compel that improperly seeks to alter the claims as pleaded by SCO. CONCLUSION Based on the fact that SCO voluntarily supplemented its answers and that IBM's Motion to Compel is premature and wholly inaccurate, SCO respectfully requestes that this Court deny IBM's Motion to Compel. [1] All references are to the Software Agreement executed by IBM and attached to the Amended Complaint as Exhibit A. [2] These restrictions are fundamental to any license for software. In the absence of such restrictions and the ability to enforce them, a licensee can simply modify or rewrite code and then give it away thereby eliminating any value of the original source code. Thus, there can be little doubt that the gravaman of SCO's Complaint arises out of these critical restrictions on the use of the software and modifications and derivative works thereof. [3] The Amended Complaint details IBM's repeated boasting of how it has contributed the protected materials to Linux. See, e.g., Amended Complaint, ¶¶91, 93-97. [4] It is particularly rich irony to witness IBM complain about the sowing of "fear, uncertainty, and doubt," given that the term originated from IBM's tactics. "Defined by Gene Amdahl after he left IBM to found his own company: 'FUD is the fear, uncertainty, and doubt that IBM sales people instill in the minds of potential customers who might be considering Amdahl products.' The idea, of course, was to persuade buyers to go with safe IBM gear rather than with competitors' equipment. This implicit coercion was traditionally accomplished by promising that Good Things would happen to people who stuck with IBM, but Dark Shadows loomed over the future of competitors' equipment or software." From The Jargon File available at http://catb.org/~esr/jargon/html/F/FUD.html [5] Indeed, in conference calls with counsel that lasted hours, IBM's counsel was told repeatedly about the basis of the claims. In fact, when directed to the pertinent allegations of the Complaint detailing IBM's improper contributions to Linux, the response was that IBM's counsel lacked the technical proficiency to determine if the answers were sufficient. The answers are sufficient. The Amended Complaint and the prior answers detail the critical contributions by IBM to Linux, including NUMA (Non-Uniform Memory Access) and RCU (Read Copy Update). These technologies improperly contributed to Linux by IBM allowed Linux to make the quantum leap into high-end corporate enterprise use; a place it did not and could not occupy before IBM's unlawful contributions. comment [] 4:08:21 AM

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