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IBM Tells SCO Court It Can't Find AIX-on-Power Code 294

Posted by CowboyNeal
from the got-that-here-somewhere dept.
Ghostx13 writes "A story over at Linuxworld states that IBM has been less than forthcoming with its bits and pieces of source code SCO is demanding. SCO is alleging in its 3rd Amended Complaint that 'IBM put SCO-owned SVR4 code in System 3-based AIX for its proprietary Power chip architecture.' The problem? IBM 'can't find' that source code. Does IBM have something to hide?"
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IBM Tells SCO Court It Can't Find AIX-on-Power Code

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  • by Anonymous Coward on Saturday October 23, 2004 @11:51AM (#10608865)
    It is buried under the sand in Iraq somewhere.
    • by Xenographic (557057) on Saturday October 23, 2004 @01:01PM (#10609291) Homepage Journal
      It's funny, but the transcript of that court hearing is sealed. Why? SCO read a priviledged email out loud in open court, strangely enough, concerning this very architecture (and that's all we'll know unless SCO & co. leak information, or the court releases a redacted transcript). As you may or may not realize, that's bad. As in the kind of thing that gets the lawyers in trouble.

      So that makes it hard to comment on what this all means, but it does make me suspicious here. What better way to spread FUD than to get the court transcript sealed and blather whatever you like to the media in the mean time? Whether by accident or design, that's exactly what SCO has been doing.

      And, as for this code, I sincerely doubt it contains anything helpful to SCO. By all accounts, they've filed an utterly baseless lawsuit that has forever been in search of any wrongdoing by IBM, and they haven't exactly come up with a lot.

      Every single piece of "evidence" they have ever put forth that we can actually see and analyze has been shown not to support SCO's position. Rather, they pounce on anything the least bit out of place and use innuendo to imply that there "must" be something more to it, because we cannot assume they would be so stupid as to do something like this without some proof...

      Given that that's how they've been operating, I conclude that this is nothing more than an unscripted bluff. That's right--they have no master plan, they're just making up crap as they go along, using whatever story is most convenient at the time. That's why the story keeps changing--they're bluffing and they have been the whole time. It was never anything but a shakedown premised on the theory that a company the size of IBM must have something to hide.

      So, to anyone who says "there must be something to this, or SCO wouldn't have done that," I say: SCO really is that dumb.

      Now, as for the other story, we're getting legal threats, etc. from that fellow who tried to buy Linux for $50,000 over on Groklaw, all due to some old court documents where people called him delusional. He did say something about a secret, personal mission to "save" Linux (or something--I don't claim to have his story straight any more than someone can claim to understand what SCO's current claims are).

      I wonder when this will be turned into a geek soap opera? "As the SCO Burns" or something? :]
      • How low can SCO go?

        Well, so far, and falling [google.com]
      • by ahknight (128958) * on Saturday October 23, 2004 @02:26PM (#10609734)
        I conclude that this is nothing more than an unscripted bluff.

        Glad you caught up with the rest of us. :)
        • Well, I concluded that some time ago, but I still keep hearing the "they must have *something* right?" comments every so often, usually in stories like this where SCO has managed to do something we don't have the information to research :]

          Just you watch--I see the "all our *good* evidence is sealed/secret/hidden by IBM" line of arguements get more play with that new pro SCO website coming out... Of course, we've always retorted to that with "it'd have to be secret because every scrap you've shown the publ
      • by killjoe (766577) on Saturday October 23, 2004 @03:24PM (#10610029)
        This Merkey guy is a hoot. Here is a quick rundown on some of the stuff he has done just catch people up.

        He used to work at novell, he took their technology after he left and tried to sell it as a product to MS. Novell sued and the judge said some hilarious things about him including that he lives in his own reality. He in turn called the judge "a novell stooge".

        He has offered FIFTY THOUSAND DOLLARS MUHAHAHAHA for the linux kernel. That's right if the writers of the code would give him the code so he can release it under a BSD license he will give them FIFTH THOUSAND DOLLARS.

        He claims to have talked to Darl and Blake (stowell) at SCO and has gotten immunity for linux but they have remove JFS, RCU, SMP, NUMA and of course all software written by IBM from the linux kernel. See how simple that was? Just revert back to kernel 1.0 and SCO will certify that linux does not infringe and we can thank Merkey for that!.

        He claims to be a member of a native american religion or a native american (he is kind of vague) and therefore will sue Pamela for hate crimes for saying bad things about native americans and inciting hate speech against native americans. All pamela did was to post the text of a ruling by the judge (public information).

        He claims to have cured (that's right CURED) arthiritis by genetically modifying peyote.

        He claims to take a lot of peyote.

        He claims to have taken part in an effort to ship peyote to NY after 9/11 in order to heal people of NY.

        He has sued novell for sexual harrasment (he has a femal boss).

        HE claims Novell has released him from all restrictions about their IP. He is working on something really big but can't tell us about it.

        He has claimed in the past to be working on an open source implementation of novell netware, NTFS support for linux and a few other big ticket items. Nothing seems to have come out of any of them though.

        He claims to have seen the code for SYSV, Linux, Unixware, and windows and claims there is substantial infringement by the linux kernel on the SCO owned IP (Daryl showed him the code!).

        He claims that Pamela Jones came into his room naked one day in monterrey and they went partying afterwards. He claims she is a scorned women out to get him.

        He sounds like he is half tripped out or drunk most of the time. If you look at the yahoo boards you see postings in his style under different names although he signs his name to the kernel list.

        I would be interested in knowing anything else about him. He is truly one of the most bizaare characters in this whole surreal saga. Apparently he works in a canopy owned building which is populated with other canopy owned companies but he claims the company he works for is not owned by canopy.
        • He claims to have taken part in an effort to ship peyote to NY after 9/11 in order to heal people of NY.

          Unfortunately the shipment was accidentally sent to D.C.
        • Oh my... (Score:3, Insightful)

          by Xenographic (557057)
          Some of that is new to me (I missed part of the Groklaw exchange, for one), but yeah, that helps me explain this a lot better.

          My view? Well, the Native American religion bit is to use peyote legally (although I think it requires at least some tribal descent? I confess to being unclear about the law surrounding it). However, I do know that they are allowed to posess and use limited quantities of it legally.

          Anyhow, I figure him for just a random nut, and I wouldn't take the things he says at face value.
  • by Anonymous Coward on Saturday October 23, 2004 @11:51AM (#10608867)
    the same game SCO is just to mock them.
  • Nothing to hide (Score:3, Insightful)

    by Anonymous Coward on Saturday October 23, 2004 @11:51AM (#10608870)
    IBM has nothing to hide, they just don't want to give up the code. Or maybe they can't find it because it doesn't exist and SCO is making a false claim.

    First post?
    • Re:Nothing to hide (Score:3, Insightful)

      by October_30th (531777)
      IBM has nothing to hide, they just don't want to give up the code.

      Of course IBM has nothing to hide! How can you even think that they'd have something to hide?

      The Big Blue is, after all, a paragon of open source, they're all about sharing intellectual property and are patenting everything just in order to protect the OSS community against the likes of SCO and Microsoft. Heck, if a company has penguins and hearts spray painted on the San Francisco sidewalks, they can't be that bad, can they? [cnn.com]

      • Re:Nothing to hide (Score:5, Insightful)

        by dodgy_knickers (793417) on Saturday October 23, 2004 @12:15PM (#10608996)
        Having something to hide isn't the only reason why IBM might say they can't find the source.

        For every additional motion SCO has to file to make IBM play ball, that's more money from their pocket.

        Every time SCO doesn't immediately get what they ask for, SCO is forced to wait it out a bit longer.

        Admittedly, I have no insight into IBM's strategy against SCO. But were I to be faced against the litigious whores at SCOX, I wouldn't want them to have an easy time of it.

        -kev

        • Re:Nothing to hide (Score:4, Insightful)

          by Rick the Red (307103) <Rick@The@Red.gmail@com> on Saturday October 23, 2004 @01:20PM (#10609405) Journal
          Having something to hide isn't the only reason why IBM might say they can't find the source.
          Uh, like, maybe they can't find the source code? The only thing IBM is trying to hide is that they're a huge corporation without total control over every little thing their people do, and that their people sometimes lose things. Valueable things. I'll bet the person who knows/knew where the source is quit or transferred long ago. It's probably on a backup tape in a warehouse somewhere, like what happend to the Arc at the end of that Indiana Jones movie.
    • Re:Nothing to hide (Score:5, Interesting)

      by einhverfr (238914) <chris.travers@gma[ ]com ['il.' in gap]> on Saturday October 23, 2004 @12:36PM (#10609135) Homepage Journal
      IBM has nothing to hide, they just don't want to give up the code.

      I think that this is right, reading the prior court documents at Groklaw.

      Or maybe they can't find it because it doesn't exist and SCO is making a false claim.

      AIX runs on Power..... So this is not it.....

      More likely, I think. SCO is saying " Show us the code. IBM has been saying "Here is the general source code for AIX. The rest you need a court order for."

      I think SCO is making false claims about IBM's non-compliance. Nothing new.

      Of course we can't read the third ammended complaint yet nor do we have IBM's response. So this is all one-sourced, one-sided at this time.
    • by rusty0101 (565565) on Saturday October 23, 2004 @12:59PM (#10609278) Homepage Journal
      IBM has provided SCO with the full source code to several versions of AIX that they were ordered to by Judge Brook Wells, within one week of being so ordered. SCO was directed to parse those source code files and identify the files and lines of that source code, that they believed were specifically relevent to the case they are persuing related to IBM.

      So far all SCO has done has been to complain that the code (which they specifically requested and which was granted by Judge Wells) was not sufficient for them. Further they have requested copies of all versions, sub-versions, itterative builds, notes, and so forth for AIX, back to the very begining of AIX, as well as e-mail and memos from executive management that might be relevent to the case.

      IBM has basically responded, 'you will have to take the results of your code review of the material you have received so far, present them to the Judge, and show what part of those results entitles you to further discovery.' Additionally they have pointed out that what they are asking for will take orders of magnitude more work to provide than what they had requested earlier.

      SCO has made the interesting response that IBM's versioning software should make these responses easy to comply with, and 'Hey, just give us direct/remote access to it, and we won't have to bother you about it.'

      Umm, yeah, anyone else think that the judge granted them the opportunity to make a brief fishing trip to some streams they have named, and SCO is saying 'Hey the fish have not been biting, let's make it a flight to a deep water fishing expedition.'

      I am not a lawyer, much less a judge. Based upon what I have seen published, I would have a very hard time approving further discovery into AIX code, much less AIX-on-Power code, which was not asked for in the first place.

      -Rusty
  • Because it never existed in the first place. They are just making things up now, and there is no reason to believe anything they say, especially with all the egg coating on their integrity.
    • Because it never existed in the first place. They are just making things up now, and there is no reason to believe anything they say, especially with all the egg coating on their integrity.

      Well, maybe, and I hope you're right, but what if IBM actually did do what they've been accused of? Is it that long a bow to draw?

      The other thing is, if it were MS, people would be running around in circles and burning effigies of Bill Gates (me too, probably ;).

      I've just been fearing that there is some merit to behin

    • by hendridm (302246) * on Saturday October 23, 2004 @12:14PM (#10608993) Homepage
      Banky Edwards: Alright, now see this? This is a four-way road, OK? And dead in the center is a crisp, new, hundred dollar bill. Now, at the end of each of these streets are four people, OK? Are you following?
      Holden: Yeah.
      Banky Edwards: Good. Over here, we have a mild-mannered, restrained, God-fearing Darl McBride holding the stolen SVR4 code. Down here, we have an SCO-hating, angry as fuck, full of rage, frenetic IBM lawyer. Over here, we got Santa Claus, and up here the Easter Bunny. Which one is going to get to the hundred dollar bill first?
      Holden: What is this supposed to prove?
      Banky Edwards: No, I'm serious. This is a serious exercise. It's like an SAT question. Which one is going to get to the hundred dollar bill first? The mild-mannered Darl, the angry IBM lawyer, Santa Claus, or the Easter bunny?
      Holden: The angry IBM lawyer.
      Banky Edwards: Good. Why?
      Holden: I don't know.
      Banky Edwards: Because the other three are figments of your fucking imagination!
  • Tried to RTFA... (Score:4, Insightful)

    by acvh (120205) <geek@msciga[ ]com ['rs.' in gap]> on Saturday October 23, 2004 @11:52AM (#10608876) Homepage
    ...but that horrid layout makes it tough to tell where the ads end and the article starts.
    • Re:Tried to RTFA... (Score:3, Informative)

      by Vicsun (812730)
      I had the same problem, and so in order to save everyone else the experience, I'll blatantly karma-whore and post the article.

      IBM Tells SCO Court It Can't Find AIX-on-Power Code
      October 22, 2004

      Summary
      In federal court in Utah this week, magistrate judge Brooke Wells ordered IBM to get affidavits from IBM management, reports Maureen O'Gara, including CEO Sam Palmisano, attesting that nothing more exists in their files regarding IBM's Linux activities. She reserved any final decision

      SCO and IBM me

  • Maureen O'Gara??! (Score:5, Insightful)

    by toxic666 (529648) on Saturday October 23, 2004 @11:53AM (#10608882)
    I think you can safely laugh at this before RTFA.

    This is one written by Maureen O'Gara, who has about as much credibility as Laura DiDio.

    Straight to the FUD Shill round file.
    • by Daniel Boisvert (143499) on Saturday October 23, 2004 @12:02PM (#10608927)
      I reached the same conclusion by the end of the article. I don't have any previous knowledge about the writer, but that whole article reeks of incredibility.

      In her final paragraph: "See, IBM - having produced one single PowerPoint presentation - contends that there are no other e-mails, memos, business plans or presentations about Linux anywhere in the joint.."

      Talk about rubbish "reporting". As another poster so kindly pointed out, they don't have to produce -everything- about linux, only the stuff relevant to SCO that SCO's requested. That she'd even make such a loaded statement, or worse, be sufficiently gullible as to believe that IBM's attorneys would make such an obvious misstatement, instantly destroys any credibility she ever hoped of having.

      I've added her to my "don't give a second glance" list, along with DiDio, Enderle, and Piquepaille.
      • by mcc (14761) <amcclure@purdue.edu> on Saturday October 23, 2004 @02:05PM (#10609632) Homepage
        At the hearing, one of SCO's lawyers, another young thing from Boies, Schiller & Flexner whose footwork was smooth enough to impress even Groklaw's IBM-dazzled observers,

        Wow, wait, what? Is this meant to be taken as objective?

        mentioned the little matter of SCO's days-old Third Amended Complaint, which, alas, is under seal reportedly because it's based on some e-mail that turned up during discovery that IBM now claims is privileged though there's supposedly no hint of attorney-client communication about it.

        Notice that SCO's side in this case seems to have absolutely zero respect for the judge and his rulings? The judge rules that IBM doesn't have to produce something; this becomes "IBM won't produce this thing". The judge rules that something SCO did in the courtroom violates confidentiality and orders it sealed; this becomes some kind of who-me where-on-earth-did-this-come-from thing which is somehow implied to be IBM's fault. Don't you think, maybe, the judge so consistently failing to take SCO's side isn't just some kind of head-slapping, inexplicable coincidence, but perhaps indicates some sort of problem on the part of SCO's lawyers?
    • by puetzc (131221) on Saturday October 23, 2004 @12:16PM (#10609005)
      I don't know about her credibility, but her writing style is incomprehensible. Entire paragraphs consist of one long, run on sentence. IANAEM (I am not an English Major), in fact, I am an Engineer. My career still depends on communicating the results of my work clearly and concisely to those who have paid me to do it. Maureen O'Gara is apparently being paid to communicate. Between the poor prose and the lousy web site she is failing on both content and presentation.
    • by Fnkmaster (89084) * on Saturday October 23, 2004 @12:29PM (#10609096)
      I don't understand. How on earth do these people get jobs as reporters with so little integrity, not to mention such poor writing and cognition skills? Who is going to read this article and not see right through the bias? I clicked and started reading, had no idea who the writer was, and by the end of the first paragraph it was obvious they were either writing a troll article to get page impressions or that they must be on SCO's payroll. How little subtlety can you possibly have?


      I guess this is what you get from a magazine that as I've since discovered from their Contact page is aimed at "IT managers". They claim "business leaders" are part of their audience too, but if a business leader is dumb enough to read this and not see it as a paid advertisement, they won't be leading their business for long.

      • Re:Maureen O'Gara??! (Score:4, Interesting)

        by LuxFX (220822) on Saturday October 23, 2004 @01:38PM (#10609518) Homepage Journal
        I don't understand. How on earth do these people get jobs as reporters with so little integrity, not to mention such poor writing and cognition skills? Who is going to read this article and not see right through the bias?

        They're basically cheerleaders. They're not going to change anybody's mind with their 'new information' but they're going to make people who already share their viewpoint happy about them. And since even losing sides need cheerleaders, they still have jobs.

        Same as 'debate' shows like Crossfire. They're not debating to come to a conclusion. Each side's arguments are so extremist to their viewpoints, they couldn't possibly change anybody's mind. They're just cheerleaders, to make the people already on their own side feel even more righteous.
      • by killjoe (766577)
        Linuxworld is an anti linux FUD site. It's aimed at CxOs who don't know any better and just blindly accept whatever zdnet says.

        "but if a business leader is dumb enough to read this and not see it as a paid advertisement, they won't be leading their business for long."

        If you met any business leaders you'd be shocked at how stipid they are. You don't need to be smart to be a business leader you just have to be able to put aside your morals to make money.
    • by h00pla (532294)
      Though her reporting and writing skills do leave something to be desired, she did break the SCO lawsuit story. In January 2004, she said [sys-con.com] that SCO was preparing for a big suit against IBM over Linux and everybody guffawed and SCO denied it. Then in March, it turned out she was right. Again, one time that you're right doesn't make you a good journalist.

    • The accounts from Groklaw witnesses at the hearing are informative, especially since they were available long before O'Gara published this piece. Nothing was said remotely like what O'Gara claims. Her report isn't just vaguely confused; it appears to be an outright lie. It COULD be that someone "spun" it to her. However, as PJ notes, O'Gara's articles make it plain that she reads Groklaw. None of these people saw O'Gara there, so her source almost has to be secondary. Given the obvious bias in the sto
  • But... (Score:5, Funny)

    by ravenspear (756059) on Saturday October 23, 2004 @11:53AM (#10608884)
    IBM did agree to disclose the code in question in exchange if SCO published a pic of Darl in a naked fetal position on their homepage.
    • Re:But... (Score:3, Informative)

      by killjoe (766577)
      Actually IBM has produced every version of dynix and AIX. What SCO is asking for is remote access into the version control system so they can look at code that never made it into an official version.
    • Re:But... (Score:3, Funny)

      by imsabbel (611519)
      Come on. Fetal Position? That fat too decent.
      How about a goatse Darl? Like "look for sourcecode HERE"?
  • LinuxWorld (Score:5, Informative)

    by LightningTH (151451) on Saturday October 23, 2004 @11:54AM (#10608885)
    For a site with linux in it's url, it seems very negative against linux and has taken SCO's side in the past. Is such a story really news worthy coming from LinuxWorld?

    Of course I am not even going into all the legal disputes, including the two orders by the judge for sco to comply and point to the lines they claim infringe (which they claim publicly to have, and they should have before bringing a lawsuit if they wish to get anywhere).
    • Re:LinuxWorld (Score:3, Interesting)

      LinuxWorld indeed has "Linux" in its name/URL. Likewise, hypothetical sites like AOLsux.com or microsoftsux.com have "AOL" or "microsoft", respectively, in their names. Generally you would not expect the sites I mention to be pro-X, despite containing X in the name.

      Likewise, LinuxWorld is by no means anything close to a pro-Linux site. It may or may not be a covert MS project; but in either event, it AIN'T a good source of Linux information.
      • LinuxWorld indeed has "Linux" in its name/URL. Likewise, hypothetical sites like AOLsux.com or microsoftsux.com have "AOL" or "microsoft", respectively, in their names. Generally you would not expect the sites I mention to be pro-X, despite containing X in the name.

        Perhaps the connotations of "World" are different from those of "sux"?

  • by Anonymous Coward on Saturday October 23, 2004 @11:54AM (#10608886)
    ... went horribly wrong - aren't these slashdot sco/ibm articles supposed to be in favour of ibm and opensource and whatnot? it didn't even mention linux!
  • by bushboy (112290) <lttc@lefthandedmonkeys.org> on Saturday October 23, 2004 @11:59AM (#10608914) Homepage
    Why should IBM be forthcoming ?

    After all, it's SCO they are dealing with and to be honest, I don't know anyone who would want to deal with them, except maybe the guy with the horns and the tail.

    I know who I'd rather back in a dispute of this nature, given the track records overall.

    • by Anonymous Coward
      Gods witnessed glaciers forming faster than my downloads...

      Thats because God has broadband.

    • If IBM wants to align itself with linux, it can't afford to play dirty licensing games with UNIX code. It's that simple. Either the company embraces open-source or else it's just another FUD factory -- even though it's currently a pro-linux FUD factory, it's still unacceptable.

      I'm not saying IBM is guilty or innocent, but I am hoping to God it really can't find the code, because they make some good fuckin hardware, and I'd hate to have to hate 'em.
    • Err... Something wrong here.
      • Which fscking product did such abomination ship in on Power??? Unix System V release 3? Aix 3.x is BSD derived with some System V functionality, but it ain't SVR3. Aix 4.x is SVR4 if not later.
      • If it shipped (I do not see it anywhere on the tree http://www.levenez.com/unix/history.html ) it was at least 5 years pre-project-Monterey. It is simply not relevant to any Monterey contract dispute as it was under the jurisdiction of the contract between ATT and IBM.

      There is someth

    • What does BSD have to do with this? (grin)
  • by Anonymous Coward on Saturday October 23, 2004 @12:00PM (#10608916)
    Linuxworld should be named "LinuxSuxWorld." It is devoted entirely to advertisers, with occasional snarky anti-Linux "articles" thrown in for show. They shouldn't even bother with the articles, and just shill 100% for advertisers like CNet/ZDNet.
  • by Fnkmaster (89084) * on Saturday October 23, 2004 @12:02PM (#10608925)
    Groklaw's IBM-dazzled observers

    I don't know, but your article loses all credibility when it includes this statement in the first paragraph. Most of the Groklaw readers aren't pro-IBM, they are anti-SCO.
    This is the second or third journalist to repeat this pseudo-meme, and that doesn't make it any more true. In fact, I think this has become so-called "LinuxWorld"'s party line.

    People hate SCO because of what SCO has done, period. There is nothing more to say about it.

    This article is a troll, plain and simple. I don't know anything about the disposition of AIX source code re: IBM and SCO's contractual relationships
    in the past, but I certainly won't take any source seriously that is so broken in their understanding of the basic underlying facts.

    Who is behind LinuxWorld? Why the ridiculous pro-SCO equivocation and anti-IBM attacks? Regardless of how you feel about IBM, how can anybody else associated with the software industry support a company that has made IP-lawsuits its first and only business priority?
    • The company that publishes LinuxWorld is IDG - the people behind PC World and Macworld (and others).

      I don't read LinuxWorld, but I don't think it's out of place to put an article like this on a site or in a magazine devoted to Linux. It certainly is related to Linux via the IBM-SCO battles. I would be surprised if they made it a habit to publish "anti-Linux" articles in there.
      • by Fnkmaster (89084) * on Saturday October 23, 2004 @12:18PM (#10609029)
        They have published at least two or three blatantly pro-SCO pieces. I'm not sure if they were all by this same Maureen O'Gara lady or not.


        What I wonder about is do they do this stuff as pure internet trolling? In other words, putting something out there that they know will inflame people so that it gets posted to Slashdot et. al. and therefore gets lots of page views and thus advertising dollars for their web site?


        Or have they been bought off by somebody else? I mean, how does SCO, a broke, shitty company if ever I've seen one, get this small but vocal cadre of middling tech journalists to push their agenda loudly? Even now, when the market, mainstream journalists and anybody else with half a brain have pretty much written SCO off. That's why I wonder if maybe this is just trolling for ad impressions.

    • by MC Negro (780194) on Saturday October 23, 2004 @12:48PM (#10609201) Journal
      Who is behind LinuxWorld? Why the ridiculous pro-SCO equivocation and anti-IBM attacks? Regardless of how you feel about IBM, how can anybody else associated with the software industry support a company that has made IP-lawsuits its first and only business priority?
      I don't think it's so much pro-SCO as it is anti-IBM. It seems Ms. O'Gara has a history [linuxworld.com] of [sys-con.com] bitterness [sys-con.com] against IBM, or so I gathered from her articles.
  • Something to hide? (Score:3, Interesting)

    by TheUnknownOne (810624) on Saturday October 23, 2004 @12:04PM (#10608939)
    If IBM really had something to hide, don't you think they would have come up with a better excuse then: "Uh... I can't find it"
  • by floydman (179924) <floydman@gmail.com> on Saturday October 23, 2004 @12:05PM (#10608941)
    is so fucked up (excuse my language, but i was pissed of):

    SCO and IBM met in federal court in Utah again Tuesday for another go-round over the discovery that IBM hasn't produced in SCO's $5 billion lawsuit against it.

    At the hearing, one of SCO's lawyers, another young thing from Boies, Schiller & Flexner whose footwork was smooth enough to impress even Groklaw's IBM-dazzled observers, mentioned the little matter of SCO's days-old Third Amended Complaint, which, alas, is under seal reportedly because it's based on some e-mail that turned up during discovery that IBM now claims is privileged though there's supposedly no hint of attorney-client communication about it.

    Anyway, the sealed Third Amended Complaint has to do with SCO's contention that - to compete against Sun - IBM put SCO-owned SVR4 code in System 3-based AIX for its proprietary Power chip architecture - and one of the supposedly compromising IBM e-mails - that SCO just happened to read out loud in court the other day - suggests that IBM was conscious that it had overstepped the bounds of its Project Monterey contract with SCO, which was intended to produce only a version of AIX for Intel's Itanium chip (CSN No 564).

    Well, during the Third Amended Complaint discussion, SCO's lawyer held up a piece of paper - that was duplicated on a projection screen that only the magistrate judge, Brooke Wells, could see - that listed all of the AIX code that IBM has and hasn't turned over to SCO. And SCO's lawyer pointed out that the only piece of code that IBM hasn't come up with - which was highlighted in red - was the AIX-on-Power code - to which IBM's lawyer replied that IBM "can't find it."

    Shades of the Compuware suit. They "can't find it."

    Makes one wonders whether IBM looked in that closet in Australia where it said a few weeks ago it just happened to stumble over the source code - the source code it swore - literally swore in court for two years - didn't exist - the code that it was supposed to produce during the court-ordered discovery phase of the suit that Compuware brought against IBM for, well, for stealing its source code.

    IBM only managed to find the code after discovery had closed and the trial was about to start, a situation that it got its ears boxed for by the District Court for Eastern Michigan, which called its behavior "gross negligence."

    Magistrate Wells has yet to cross that bridge, however.

    After listening to what everybody had to say - and all the reasons why IBM shouldn't have to produce all the rest of the stuff that SCO wants - particularly the IBM Configuration Management and Version Control System (CMVC) and Revision Control System (RCS) that SCO thinks is the key to its case - she reserved any final decision so she could go off and have a think about it - and probably confer with her staff and her colleague Judge Dale Kimball, who's hearing IBM's motion for a partial summary judgment - a decision, IBM pointed out, that might make her ruling moot.

    However, she did give IBM and SCO 30 days to exchange so-called privilege logs listing all of the discovery that they're not providing each other because it's allegedly privileged.

    She also told IBM to get affidavits from IBM management, including CEO Sam Palmisano, the CTO of IBM's Unix/Linux interests Irving Wladawsky-Berger and IBM's board of directors, attesting that nothing more exists in their files regarding IBM's Linux activities.

    See, IBM - having produced one single PowerPoint presentation - contends that there are no other e-mails, memos, business plans or presentations about Linux anywhere in the joint, evidently proving that not only can elephants dance, but that they really do have good memories.


    • While attempting to locate the point of these so called paragraphs - a feat further complicated by the fact that the writer seems obsessed with her need to use hyphens - I was compelled to ponder whether said writer is more impressed with the prose of certain long-winded French writers of old - who perhaps are more conversant in both law and technology than she - than in the prospect that she'll ever assemble a passage that one might be able to read and comprehend.
    • >one of SCO's lawyers [...] footwork was smooth enough to impress even Groklaw's IBM-dazzled observers

      ...but only because he managed to stay awake throughout the hearing ;-)

  • by calidoscope (312571) on Saturday October 23, 2004 @12:06PM (#10608951)
    Microsoft said it lost the source code to MS-DOS. Pretty much the same way that they can't find the e-mails for the Burst case.

    One question about source code for OS's - if a company can't find the source code for a 5 year old release of its software - do I really want to trust their software to handle my data??

    • I'm wondering... if a company looses the source code to some software that they patented, would this effectively destroy the patent? Or does the patent office have a copy of the source code? If it doesn't, how would the company prove patent infringement?

      Just a thought... not a particularly focuses one, but a thought.

      • When you patent some software, you are not patenting the source code. You describe the feature of the software that you are patenting, and that feature (which may be an algorithm) is what you patent. Someone else could violate your patent without ever duplicating a line of source.

        As for proving infrigement, they'd just have to show that the allegedly infringing program met their description of what they had patented.

    • Not everyone can do ftp-mirror source backups. :-D

      Free your software: more freedom, more stability.
  • by ivi (126837) on Saturday October 23, 2004 @12:12PM (#10608978)

    but in response to SCO's nonesense,
    I'd say: Good on IBM ;-)
  • I doubt it. (Score:4, Informative)

    by infinite9 (319274) on Saturday October 23, 2004 @12:12PM (#10608979)
    They probably really can't find the code. I used to work for IBM. I've seen them lose source for their products myself.
    • Re:I doubt it. (Score:4, Insightful)

      by debrain (29228) on Saturday October 23, 2004 @12:29PM (#10609098) Journal
      So, open source is like some sort of backup system for IBM's source code, then?

      That IBM can lose source code to an entire operating system helps dispel any argument that, for posterity, source code is safer in companies. :)
    • Re:I doubt it. (Score:3, Insightful)

      by MouseR (3264)
      I find this hard to believe. Even if they did misplace a couple of tape backups, I'm sure they have ESCROW disks running around.

      Those who are oblivious to ESCROW distributions, they are copies of entire source trees given to third parties (usually, a law firm) as a guarantee exchange to a client to provide them to access to sources if the supplier goes under. It's a way to secure big contracts.

      Oracle does such ESCROW releases, and other companies do so as well.
      • by Ohreally_factor (593551) on Saturday October 23, 2004 @02:09PM (#10609643) Journal
        For creating this confusion. What is missing isn't source to any release version, it's a developmental iteration. IBM has already given SCO all of AIX source. What SCO has been asking for is every little change whether it made it into a release or not. Because, dammit, their code has to be in there somewhere!

        With O'Gara, it's hard to tell where the sloppy journalism stops and the pro-SCO bias starts. I used to think she was just a crappy writer, not a SCO shill.
  • by Zocalo (252965) on Saturday October 23, 2004 @12:12PM (#10608980) Homepage
    SCO thinks IBM put its code into AIX and exceeded the bounds of their contract. Wonderful; a whole year of FUD and wild claims about Linux and we've come full circle and are back to the original reason for the case - breach of contract. Unless IBM then took that same code out of AIX and put it into Linux, the OSS community is free and clear on this point no matter what the outcome in court. The only problem I have with this outcome is that if it's shown that IBM *did* exceed the terms of the contract and put some code into AIX that it shouldn't have done, then SCO is going to get damages. You can bet your ass SCO won't be paying any damages for the defamation of Linux and the GPL in the mean time.

    Then again, it could just be another fluff piece to try and boost the stock price up from yet another 52-week low. On the subject of which, the price of SCOX is now at almost exactly the same level it was right before Linux got dragged kicking and screaming into the court case and things went crazy...

    • Can you say biased? (Score:2, Interesting)

      by Xenographic (557057)
      Well, after reading that article, I have to *seriously* wonder if this isn't part of a SCO plot. Or, if not a plot per se, they would seem to be opportunistic about the court sealing the transcript of the last hearing.

      Think about it--read a priviledged document to get the court to seal the transcript so we can't very easily comment on it (hard when you don't have the exact words to start researching things) and use that to spread FUD.

      Maureen O'Gara? Funny, I could swear she's on the list of SCO schills.
  • by aflat362 (601039) on Saturday October 23, 2004 @12:13PM (#10608988) Homepage
    IBM can't find the source code for one of their products? They must be lying! . . . or are they?

    I have been working with IBM Content Management products for about 3 years now as a Sys-Admin / Programmer.

    On occasion I'm in Awe of IBM. The abilities they have to produce huge enterprise applications in a short amount of time is amazing.

    But usually I'm in Awe of IBM in a negative light

    There have been several times that IBM couldn't come up with the binaries for some of their fixpack levels of some of their products., let alone the source code. The developers were like . . . uh . . . we don't have that code any more.

    Oh yeah? Where did it go?

    The fact that they can't come up with the source code for some parts of their AIX OS does seem suspicious but comes as no shock to me.

    • There have been several times that IBM couldn't come up with the binaries for some of their fixpack levels of some of their products., let alone the source code. The developers were like . . . uh . . . we don't have that code any more.

      Oh yeah? Where did it go?


      Simple. The archival policy is to maintain the last three releases of the binaries. Beyond that, it becomes tedious to retrofit bug fixes into every past release. Most active customers will update as the releases come out. But there are always some
    • This is totally no shock to me at all. I know ClearCase (from Rational Software which IBM bought) quite intimately. If they use that for AIX, then its quite possible they don't have it anymore.

      ClearCase is the only content management product which can get FULL. You hear right. It can get full. To record any more objects, branches and versions, you have to delete something. As incredible as this seams, thats a fact. They have a finite and quite low number of object ids and you cannot go over limit. Thats w

  • Not surprised (Score:5, Interesting)

    by 3.2.3 (541843) on Saturday October 23, 2004 @12:14PM (#10608991)

    IBM has document retention policies specifically to limit liabilities. Or more like document destruction policies. All emails have to be wiped after two years. They probably truly don't have the code anymore.

    Recently I had the misfortune of Microsoft trying to find some include files from an Embedded Win CE V3 platform builder (don't ask, it wasn't my decision to use that crap) for me for an older single board computer. They no longer had the source, either. And it would have been very *good* for them if they'd been able to come up with it. They literally didn't have it anymore.

    Throwing company materials away as early as possible is the newest predefensive corporate legal maneuver. If tobacco companies had done that, they'd have saved a lot of money. Probably watching the tobacco companies is what gave other companies the idea.

  • by maximino (767005) on Saturday October 23, 2004 @12:15PM (#10609003)
    Even if IBM ripped off some SVR4 code from SCO and put it into some of its products, that does not implicate Linux. At all. All of the posturing from SCO is simply an attempt to obfuscate the following facts:

    (1) SCO has all the SV code.

    (2) SCO has access to all the code in Linux.

    If there is no overlap between these two, then there is no copyright infringement, despite the crack-addled theories proposed. They may have a case against IBM for contract breach from one of their previous dealings, but I really doubt it.

  • SCO was OK with this (Score:5, Informative)

    by roman_mir (125474) on Saturday October 23, 2004 @12:16PM (#10609009) Homepage Journal
    here is the link [groklaw.net]

    I left this as a response to that horribly written, ad and idiocy infested article.

  • waves .. (Score:5, Funny)

    by macaulay805 (823467) on Saturday October 23, 2004 @12:18PM (#10609026) Homepage Journal
    *waves hands*: This is not the source code you are looking for.
  • IBM hasn't been competely honest in the past, either. Remember the IBM branded Deathstar... er Deskstar hard drive issue?

    SVR4 code in System 3-based AIX for its proprietary Power chip architecture

    Even if the above statement is true, how does it relate to Linux? If this is all that SCO has, it'll open itself up to lawsuits for threatening businesses that use Linux in the past.
    • Sco for over a year kept insisting on looking at the AIX code for a fishing expedition.

      FIrst it was "It's IBM's job to find the code", to your honor, "We need AIX code to prove our case", to now this rubbish.

      Of course their is probably some SysV code in AIX. They licensed it from the old SCO.

      My guess is Mcbride will find some lines of unixware in AIX and scream "SEE! IBM GAVE CODE FROM AIX INTO LINUX!" even though the code is probably not from Unixware directly but SCO will claim ownership because its a
  • I cant believe for a second that a company like IBM would lose source to a significant product like this.

    Sure some engineer's pet personal toy could get misplaced, but not something like this.. they have too many things in place to control source to have just magic 'lost' something..

    Not that this makes SCO some sort of saint, but come on IBM, get real...
  • by mikael (484) on Saturday October 23, 2004 @12:28PM (#10609093)
    ... doing a Google search?

    And if that fails, a www.archive.org search?

  • So IBM (Score:5, Insightful)

    by mcc (14761) <amcclure@purdue.edu> on Saturday October 23, 2004 @12:35PM (#10609127) Homepage
    Has been entirely and quickly forthcoming with millions and millions of lines of code that SCO has basically been demanding as part of a fishing expedition.

    One single piece of code out of these mountains IBM claims has gone missing.

    Possible explanations from this:

    1. IBM is telling the truth.
    2. This is the one single piece of infringing code in all of Dynix or whatever which is infringing, and so they are hiding it.

    Reasons for believing number one to be true: Well, it's extremely plausible. Given how much that IBM has produced the idea one single document among all of this has been legitimately lost within IBM is fairly believable.

    Reasons for believing number two to be true: Well, nothing. But it's possible.

    We certainly

    SCO's strategy, for lack of a case until this point, has been to demand increasingly larger mountains of discovery until they hit something that is unreasonable. Once something proves to be unreasonable, they go to the press yelling "What does IBM have to hide???". SCO's media shills, working in a vacuum as they do, have been able to do this as often as they like despite the fact that generally, the reason IBM has not provided these things is that the judge ruled they did not have to. Meanwhile, it is probably important to keep in mind SCO has consistently refused to comply with even the most basic of discovery demands, even sometimes when ordered by the judge.

    Now they appear, within this strategy, to have struck gold. They have located something which IBM is not producing, but yet the judge actually agrees IBM should produce-- and which IBM claims it is unable to produce. However, still, they have produced no evidence that this indicates wrongdoing of, well, any sort. There's no way you could make this appear so much as suspicious except by pointing to, well, the fact IBM's been so entirely forthcoming up until now. Once you do that it is possible to make it appear suspicious, yet, but not possible to actually make anything of it in court; from a court's perspective this detail is quite small. So it appears this is no victory for anyone except SCO's disconnected-from-reality PR shills.
  • by roman_mir (125474) on Saturday October 23, 2004 @12:36PM (#10609132) Homepage Journal
    Right in front of my eyes, some of the comments left on that site have disappeared, it went down from 8 to 5 comments in just a second.

    So, the truth hurts, and the truth in this case is - everyone who goes to read this article hates what is written there but most likely does not understand the entire issue at hand about the SVR4, leaves a comment of this sort: "This site is ugly and ad-ridden, and Maureen is a SCO shill" and the editor removes the comment. The entire issue is like that SCO was allright with this move by IBM and there is a story [groklaw.net] to support this at groklaw. The story goes like this: there was a document on the SCO's site for a while that talked about how great it will be that IBM will have SVR4 code in their Power design... But the article was remove from SCO site.

  • by melevitt (31652) <melevittfl@noSpaM.yahoo.com> on Saturday October 23, 2004 @12:36PM (#10609136)
    I am amazed that Slashdot would lend credibility to a story by Maureen O'Gara. She's nothing more than a hack with an obvious anti-Linux bias.

    I had been considering subscribing to Slashdot. I have now decided that I'll spend my money where the editors have better sense.
  • Look at that. The right 1/3 of the entire page is filled with ads. The article has a half screen-length (at 1024x768) of text ads. There are another 2 screen-lengths of text ads and crap info I don't care about beneath the article, excluding the author's info. Oh, and they have a banner ad at the top of the page.

    And they expect me to read the article? Fuck that.

    If they wonder why their bandwidth costs are so high, why don't they take a look at all their graphic advertisements instead, along with the
  • After all that FUD about Linux source code control, the lofty IBM can't find some AIX code? What will they do when there's a security or other bug they have to fix? Even if they haven't "lost" it yet, if they stick to their bluff, it will have to *stay* lost.
    • IBM's a mega-corp, and like other mega-corps, they had their share of lies (like the Deskstar post I made earlier) It is foolish for many geeks to believe them blindly, although they are of less evil when compared to SCO and MS. Besides, didn't IBM have a license that allows it to use SysV code?
  • by OpenSourced (323149) on Saturday October 23, 2004 @01:26PM (#10609440) Journal
    ... never ascribe to malice, that which can be explained by incompetence.

    It's quite likely they cannot really find the code. Anybody that has worked at a big corporation knows that (If you haven't, just read the complete Dilbert strips, and you'll have an idea).

  • by jjohn_h (674302) on Saturday October 23, 2004 @05:03PM (#10610485)
    Scribbler O'Hara misunderstood her SCO input:

    > ... the little matter of SCO's days-old Third Amended
    > Complaint, which, alas, is under seal ...

    There is no Third Amended Complaint. To file a 3rd amendment
    SCO needs approval by the Judge and IBM has to be
    consulted. Although their chances to be refused are high,
    it may happen that SCO ask the Judge for permission to file
    such an amendment because they are so desperate to extend
    discovery to the end of time and never have to let down
    their pants in court.

    Note that the story about AIX using non-licensed
    Unixware code is more than one year old and was already
    dissected and debunked, see Groklaw as usual:

    http://www.groklaw.net/article.php?story=132

  • by isdnip (49656) on Saturday October 23, 2004 @07:42PM (#10611164)
    LinuxWorld is certainly not a pro-Linux site, nor is it ZDnet -- it's put out by SysCon media. Well, at least the "con" sounds right! Maureen O'Gara is simply a SCO mouthpiece. I'm perplexed that CowboyNeal ran with it here, giving it credibility that it doesn't deserve. Maybe he's trying to earn those Cowboy Neal jokes.

    But what's the lead story on LinuxWorld today?

    Fraud in Linuxland? VA Linux Class Action To Go Forward

    Yep, it's an attack on Slashdot's owner! If you can't take the message, dig the dirt on the messenger!
  • by Blasphemy (78348) on Saturday October 23, 2004 @08:55PM (#10611552)
    Groklaw has a rebuttle here [groklaw.net].

    Basically the whole story is a lie. The judged sealed the transcripts of the hearing (probably because of the confidential email the SCO lawyers read aloud), so the author couldn't have checked her facts. All the witnesses who attended the hearing and reported back to Groklaw say that IBM never said anything about "losing" code.

    Just another Microsoft shill.

  • by fanatic (86657) on Saturday October 23, 2004 @09:33PM (#10611749)
    This is more of SCO's lying avout the Court cases.

    There were 2 folks there who reported to Groklaw what happened. They also report that Maureen O'Gara was *not* at the hearing.

    See: http://www.groklaw.net/article.php?story=200410231 53851359 [groklaw.net]

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