IBM Tells SCO Court It Can't Find AIX-on-Power Code 294
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?"
LinuxWorld (Score:5, Informative)
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).
Because the page layout of the link (Score:4, Informative)
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.
Shades of DR-DOS suit against Microsoft (Score:3, Informative)
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??
Re:Tried to RTFA... (Score:3, Informative)
IBM Tells SCO Court It Can't Find AIX-on-Power Code
October 22, 2004
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.
I doubt it. (Score:4, Informative)
I believe IBM - here's why (Score:5, Informative)
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.
SCO was OK with this (Score:5, Informative)
I left this as a response to that horribly written, ad and idiocy infested article.
Re:I believe IBM - here's why (Score:3, Informative)
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 stragglers who don't keep up to date.
Large corporations are more like a loosely organised collective of 1000+ small technology companies all sharing the same accounting and legal departments. Each division/group has their own data backup/archival policy for software projects. Legacy projects usually end up backed up onto the oldest/slowest servers, until these machines are deemed to take up too much space/energy or make too much noise. Then they are sent to the corporate knackers yard to be "recycled" for spare parts. Then as part of corporate security, the disk drives are thoroughly wiped. So it's very easy for data to "disappear" forever.
Re:Groklaw's IBM-dazzled observers? (Score:5, Informative)
Re:But... (Score:3, Informative)
Nothing to hide Or not.. (Score:5, Informative)
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
Probably in sealed documents... (Score:5, Informative)
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?
Maureen O'Gara (Score:4, Informative)
See what I mean?
Blame it on Mo O'Gara (Score:4, Informative)
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.
Re:I doubt it. (Score:2, Informative)
Re:Probably in sealed documents... (Score:3, Informative)
Well, so far, and falling [google.com]
Re:Probably in sealed documents... (Score:5, Informative)
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.
There is no 3rd Amended Complaint (Score:4, Informative)
>
> 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
Re:Probably in sealed documents... (Score:4, Informative)
Groklaw: This story is a flat out lie (Score:5, Informative)
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.
This is NOT what happened. (Score:5, Informative)
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]
See GrokLaw for factual information (Score:2, Informative)
http://www.groklaw.net/article.php?story=200410
You're NOT Wrong... no statements were made... (Score:4, Informative)
According to Groklaw [groklaw.net] none of the eye-witnesses to the hearing in question SAW or HEARD any suck claim [groklaw.net]. In particular, the SEALED transcript is not available and the "reporter" in question *WAS* *NOT* *PRESENT* for the hearing.
You are all victims of FUD and you can stop with the uninformed pro-SCO Astroturf and rebuts there-of.