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SCO's antics get slapped down

FUD debunked, courtroom loss
Sun Dec 07 2003, 08:24
* THIS ARTICLE HAS been updated since it was first filed with some extra info. Ed.

"This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning." — Winston Churchill, November 10, 1942

SCO'S SCHEMES to somehow leverage its pathetic UnixWare OS at the expense of Open Source took some well deserved hits last week.

On Thursday we covered, here, another Open Letter attacking software freedom that SCO published under CEO Darl McBride's name. We say the letter was published under his name because Darl McBride didn't really write it, as a visitor at SCO's stock message board on Yahoo discovered. Here's a bit of Microsoft Word metadata that showed up in the first version on SCO's website, although SCO quickly edited its webpage sometime afterwards:

Author: Kevin McBride
LastAuthor: Dean Zimmerman

Dean Zimmerman was a middle manager at Caldera, and perhaps he's a flack in Blake Stowell's PR operation now, but that Kevin McBride is the CEO's brother. He must have recently signed on to "help" dear brother Darl.

The letter itself was awful. It was crude in attempting to attack those who oppose SCO and disingenuous in mischaracterising their beliefs. In a clumsy threat, it even tried to paint as copyright apostates and pirates all who choose to share software written individually and cooperatively. It even brandished the DMCA as though all those software authors must be misappropriating their own work by sharing it in order to improve it.

This time it didn't take weeks for the community to respond. Within just hours, scathing replies appeared from several quarters. Lawrence Lessig, a Stanford Law School Professor, dissected McBride's ridiculous opinions regarding the meaning of the copyright clause of the US Constitution:

"Don't tell me this is what the Framers had in mind when they drafted the Progress Clause of our Constitution.

His full reply is at his weblog here.

Almost simultaneously, Pamela Jones crafted another outraged response to McBride's letter in an article at her Groklaw legal research site that has SCO squarely in its crosshairs. Her essay complements Lessig's, reviewing the history and documents behind the US Constitution here, and concluding:

"'s obvious that those who release their code under the GPL are making use of copyright law, not fighting against it or trying to defeat it. We are counting on it to protect us from the corporate bad boys who wish to steal our creative work for their own economic profit.

"And by the way, SCO, if you don't like the GPL, we suggest you stop using GPL code in your products."

Eben Moglen, Professor at Columbia University School of Law and General Counsel to the Free Software Foundation, also dismissed McBride's letter as the FUD and nonsense it was in an interview with LinuxWorld here:

"As to the actual substance of any claim that the GPL is an invalid copyright permission, it's foolish.

"SCO's arguments... concerning the invalidity of the GPL are just invalid. They're meant to scare people." also treated SCO's latest open letter with open derision, quoting both Lessig and Moglen, who added here:

" "As an amateur scholar of constitutional law, Mr. McBride is longer than he is deep." ... Eben Moglen on SCO CEO Darl McBride's short-bus legal acumen."

And finally, NetworkWorldFusion quoted this comment from Linus Torvalds with regards to McBride's tortured views on the US Constitution and copyright law:

"If Darl McBride was in charge, he'd probably make marriage unconstitutional too, since clearly it de-emphasizes the commercial nature of normal human interaction, and probably is a major impediment to the commercial growth of prostitution."

McBride's tedious and tendentious letter and that resulting firestorm of responses were only the prologue to last week's main event, however. A court hearing was held Friday morning on discovery motions relative to the SCO vs IBM lawsuit. The discovery process hasn't gotten very far, proceeding quickly to an impasse. Both IBM and SCO have said they each require more information from the other party before they can provide that party with the information it wants. Friday's hearing was held to break the logjam by deciding which of the two parties has to respond to the other party's discovery requests first, or if both sides must, or possibly neither.

As the defendant, IBM maintained it is entitled to be informed by SCO as to what, specifically, SCO is alleging IBM did to breach confidentiality based upon its contract for AT&T System V Unix. In particular, IBM asked SCO to identify what lines of source code in what files and what version of Linux SCO is alleging that IBM contributed, constituting infringement of SCO's contract rights inherited from AT&T via Novell, USL and Old SCO (now Tarantella). IBM wanted SCO to tell it "What the case is about."

Instead, SCO sent IBM over 100 CDs containing scanned images of printed SCO Unix System V source code, along with a list of 583 files of Linux source code saying in effect, "it's in there, now you tell us where."

Groklaw showed that SCO's list of Linux source code files could be generated by a simple text search command ("grep" in Unix language), run against the source files of the Linux 2.5.69 development kernel:

"find . -type f -name "*.[ch]" -print0
| xargs -0 egrep -wil 'smp|jfs|rcu|numa'
| egrep -v 'alpha|parisc|sparc|driver|sound'
| cut -c 3- | sort > /tmp/output1

find . -type f -path "*jfs*.[ch]" -print0
| xargs -0 egrep -Li "@sco|@caldera"
| cut -c 3- >> /tmp/output1

sort /tmp/output1 | uniq > /tmp/output

diff --side-by-side --suppress-common-lines /tmp/output /tmp/SCOFiles"

Comment at Groklaw here.

Interestingly, both the Groklaw and SCO file lists include source files where the only instances of "SMP" are merely comments, mentioning that certain functions are not SMP-aware.

Of course, IBM found this non-responsive, so it filed a Motion to Compel Discovery against SCO. IBM also wants additional information from SCO on other topics, but those issues mostly relate to IBM's counter-claims.

IBM's counter-claims might bankrupt SCO, but they weren't the specific problem that motivated IBM's Motion to Compel Discovery proceedings.

SCO, on the other hand, maintained that it couldn't provide any specific claims of infringement or misappropriation without first being provided by IBM with all of its source code to all releases of AIX (IBM UNIX(tm)) along with truckloads of related documents and information. IBM refused to do so until SCO first established its claims "with specificity". SCO also filed a Motion to Compel Discovery against IBM, in essense wanting a license to go fishing for a clue all throughout IBM's AIX history.

In operating systems theory, such a pair of locked and mutually blocking requests create a situation that's called a "deadly embrace" and usually it requires either cancelling one of the tasks or alternately, rebooting the operating system. That's what the Federal Magistrate had to do here, and rebooting the US federal justice system wasn't among her options.

Having read both parties' Motions and Memoranda in support, Judge Brooke Wells opened Friday's hearing by announcing her intention to grant IBM's Motion and deny SCO's. She then listened while Kevin McBride (yes Darl's brother, again) rambled for 40 minutes about how SCO cannot know its own claims "with specificity" until it might see mountains of IBM materials. IBM's David Marriott presented its argument succinctly in 20 minutes.

We'd noted reports that SCO's high profile attorney David Boies didn't show up at Friday's hearing. One might be excused for anticipating that $10 million in cash should at least get your lawyer to appear in court, but maybe strategy doesn't work like that if you're a star trial lawyer.

After hearing both sides, Judge Wells ruled as intended, granting IBM's Motion to Compel Discovery against SCO and giving SCO 30 days to comply. She also held SCO's Motion in abeyance until after it responds, and she scheduled another hearing in late January. IBM won, and SCO lost roundly here, in this writer's opinion. SCO's hope for its fishing expedition is likely doomed, since Judge Wells can reasonably be expected to limit any SCO discovery against IBM to items directly relevant to its own specific claims, which SCO must now produce before demanding discovery of IBM.

We covered this hearing briefly here and the Deseret News has a brief article summarizing the outcome also, here.

For IBM, perhaps Friday's hearing marks... the end of the beginning. But for SCO, the hearing result might signal... the beginning of the end.

And now Darl McBride also has the sticky problem of figuring out how to fire his brother. µ

See Also
SCO releases new open letter on GPL
Judge tells SCO, tell IBM the infringing code

Lawrence Lessig's weblog
Deseret News


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