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SCO v IBM decision is out.

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Well the decision on the Feb 6 hearing is out.

Basically both side have got 45 days to prove the case (again). Head on over
to groklaw to find out the truth.

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On Thu, 04 Mar 2004 13:34:37 +1300, Howard wrote:

> Well the decision on the Feb 6 hearing is out.
> Basically both side have got 45 days to prove the case (again). Head on
> over to groklaw to find out the truth.

Groklaw is buckling under the traffic. Here's PJ's article:

The order is in. She tells both sides to comply with discovery, but in the
case of IBM, she specifically restricts the requirement that they provide
AIX files to the 232 mentioned by IBM's lawyer, David Marriott, at the
last hearing on February 6. SCO must demonstrate a need for more if they
want more. But they don't get every AIX version from the beginning, as
they had repeatedly requested. SCO has 45 days to comply fully with IBM's
discovery demands. Remember, that is what IBM asked for, that SCO be given
a date to comply.

SCO has 45 days to identify "all specific lines of code" they allege IBM
put into Linux from AIX or Dynix; identify and provide "with specificity
all lines of code in Linux that it claims rights to; provide and identify
with specificity the lines of code that SCO distributed to other parties,
and this is to include "where applicable the conditions of release, to
whom the code was released, the date and under what circumstances such
code was released."

The previous discovery stay is lifted. IBM has 45 days to provide "the
releases of AIX and Dynix consisting of 'about 232 products' as was
represented by Mr. Marriott at the February 6, 2004 hearing." After that
SCO can provide memoranda indicating "if and how these files support its
position and how they are relevant." If they ask for more files, they are
to explain reasons for such requests.. Then the court "will consider
ordering IBM to produce more code from AIX and Dynix."

What it all means in practical terms is that the court didn't buy SCO's
argument that it needed all of AIX and Dynix and it specifically rejected
its request that IBM *first* provide AIX and Dynix, so that after that SCO
could find what it needed. Since, obviously, IBM is unlikely to provide
its side of the discovery order until the 45th day, SCO, under the
identical 45-day requirement, will have to provide its answers to
discovery before it gets to look at any more AIX or Dynix.

SCO is granted one request: that IBM turn over discovery regarding top
management, including Sam Palmisano. Also Judge Wells asks that IBM turn
over any nonpublic contributions to Linux that it may have made. She will
learn more about Linux as the case goes along, and I believe she will find
there aren't any such. SCO asked for source logs. Wells says fine, but SCO
has to do the same for IBM. I don't remember IBM asking for source logs,
but it is only fair.

She then asks both sides to explain how the new amended complaint impacts
IBM's Motion to Strike. That's it. She would like the case to move
forward, but she has done so in a way that is not a problem for IBM. SCO,
on the other hand, has to provide what it told her at the hearing it can't
provide without looking at all of AIX first. How they will do that remains
to be seen.

We hope to have it transcribed soon. Here is the PDF from SCO's website.
We should have a local copy soon, if you prefer to wait.

To refresh your memory, here is the transcript of SCO saying it is
impossible for them to provide the discovery without getting AIX and Dynix

MR. HEISE: The reason I am maybe going more into the merits than I
probably should in front of Your Honor is it directly ties into the
adequacy of these interrogatory answers. The interrogatory answers
detail exhaustively the contributions of AIX and Dynix that were made
in there. There is no dispute about that.

They then in this letter that they wrote earlier this week said, Well,
you didn't identify the line-for-line matching in every single place.
There are two times when we did not do that in our answers to
interrogatories. One is in table A of our interrogatories which we
identified eight different files and we said the copying is complete
throughout. We are not matching up the lines and I gave an example of
that in the demonstrative aids when it says copying of Dynix slash
into Linux, and you can see the red on the right is exactly the same
as the red on the left, and that is line-for-line copying. So that is
the one instance in our interrogatory answers where we admittedly said
in there it is throughout. We are not identifying lines here.

The other place where we did not identify the line-for-line copying
are for certain technologies known as Asychronous Input/Output and for
Scatter Gather Input and Output. There is a very fundamental reason.
Because to be able to do the line-for-line matching we need to have
their source code. They have given us zero AIX and two CD's of Dynix.

THE COURT: But the requirement of the Court is that you provide those
source codes.

MR. HEISE: I think there is a fundamental misunderstanding and let me
explain why.

With respect to these other technologies that they have publicly
acknowledged that they have contributed, they have laid out how it is
that they have contributed it, and it was a part of AIX or Dynix, and
what they are saying is, Show us the lines. That is the equivalent of
saying I am not going to show you the book that contains all of these
lines of code, therefore, all we can do is say it is from AIX or Dynix
and you have said it is and we have identified how it is and why we
believe it is in fact from AIX or Dynix. But to sit here and say to us
when they have not given us their source code, and their source code
is what is matched up --

THE COURT: This is about your response and compliance with the Court

MR. HEISE: I understand that.

We have given the technology based upon the information we have. The
answers to interrogatories that they are complaining say, yes, but for
those given technologies you have not identified the specific lines.
What we have said in our answers to interrogatories is we can't
identify those specific lines because it comes from your confidential
code which we don't have access to yet.

THE COURT: Mr. Heise, this is the problem. The problem is that unless
you identify those codes, which was required by the Court order --

MR. HEISE: Which we did.

THE COURT: -- then I.B.M. is not in a position necessarily to respond,
the way I see it. So we are at an impasse and we can't be at an
impasse and have the case remain at a standstill. That is why there is
an order in place that SCO has been required to comply with, so that I
might then address what IBM has to comply with.

MR. HEISE: But I'm trying to stay focussed on our compliance.

I guess maybe a way to explain it, is in the technologies that they
have contributed, let's say in rungs 15 and 16, that is not from us.
That is not our Unix System V code. That is AIX or Dynix. We don't
have that source code to be able to identify the lines, because they
are quibbling about the fact that we have not identified the lines of
a couple of technologies. We don't have the source code for 15 and 16.
They do.

If they give it to us we'll supplement if further, but in the absence
of that it is literally impossible to identify the lines. We have
identified the technology, we just cannot identify the lines because
we don't have their derivative modification source code. That is why
and that is what I am trying to get across.

THE COURT: Well, you have made your point, I am just not certain I
agree with it.

The order shows she did not, in fact, agree with it.

And here is the discussion about the 232 files at the hearing:

If you look, Your Honor, at what we are willing to produce, it is a
substantial amount of code. We either have produced or will produce
three million pages of paper of source code. That isn't every
conceivable iteration of these products. It is, however, about 232

If I may approach?

THE COURT: Certainly.

MR. MARRIOTT: Now, again, I think the production of this material is
entirely uncalled for, Judge, but we are prepared to do it to put to
rest this notion that somehow IBM is somehow hiding the ball with
respect to the production of source code. This amounts to well over
100 million lines of source code and we are prepared to produce that.
We said we were prepared to produce that in our opposition papers.
This is the releases of AIX and Dynix and the released products during
the relevant time periods that they are concerned about.

What we are not willing to do, Your Honor, is to produce every
conceivable draft and iteration and version of this stuff that might
exist in the files of the company that has more than 100,000
employees, with respect to products that were developed over decades,
and as to which 8,000 different individuals worked on.

To state it, Your Honor, is to express its absurdity.

And here is the SCO request regarding upper management:

HEISE: The other critical deficiency in the production of documents
and interrogatory answers is that there is nothing from any of the
highest levels of the company.

As you saw when IBM was filing their Motion to Compel, they kept
asking for Darl McBride, the CEO, Chris Sontag, senior vice president,
all of the top key people and kind of working their way down the

What we have gotten from IBM is working its way up the ladder, despite
the fact that on October 28th and other occasions I have spoken with
representatives of IBM and said we want the documents and materials
from Sam Palmisano, from Irving Wladawsky-Berger, the key executives
that are intimately involved in the Linux project.

In our reply memo in support of this Motion to Compel, we in fact
provided an article from the New York Times where Mr. Palmisano is
identified as the leader of moving IBM into the Linux movement. Mr.
Wladawsky-Berger is a core, critical person and they are not mentioned
in any of their interrogatory answers and we have gotten no documents
from them.

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