SCO vs. IBM: Notes from Yesterday's Hearing


Cody Hilton from Guru Labs attended the SCO vs. IBM hearing in Salt Lake yesterday and sent along these notes. This is a summary of the dialog that occurred in the courtroom from a 3rd person perspective. There are some gaps and truncated dialog but the general idea is apparent.

December 5, 2003
Federal Court House
Judge Wells
15 in the gallery
10:00 am - 11:30 am

Plaintiffs

  • Attorneys:
    • Kevin Mcbride (Darl's Brother)
    • Mr Hatch
  • \tAlso:
    • Ryan Tibitts
    • Darl McBride

Defendants:

  • Attorneys:
    • David Marriott
    • Todd Shannessy

Judge: Intention is to grant IBM's motion to compel delivery (interrogatives 12 and 13) . Plaintiff to file responses within 30 days. Postpone discovery until compliance achieved. There is a protective order in place.

K. McBride: Would like to put motion on hold until specific discovery is covered

Judge: There is a circular pattern going on in discovery.

K. McBride: Wants to convince the Judge that specific discovery should be entered. This case is basically about infringement. There needs to be a clear definition of what source code infringes on Copyright law, trade secret law, and contract violations. Sites case of Sun vs. Microsoft where Microsoft misappropriated derivative works. Microsoft made changes to Java. This is about the derivative works. SCO acknowledges that IBM owns the derivative works but there is a contact in place on what can be done with it.

Continues with an explanation of Unix. Describes Unix and the preferred OS for large corporations. Unix was licensed to large software vendors like IBM and HP. The license stipulated what the software could be used for. SCO needs to know what IBM put into Linux whether it violated Copyright, trade secret or confidential information. SCO needs to see source code, development methods, developer notes related to the Unix derivative AIX.

Linux is undermining Unix, and SCO does not know what it is IBM contributed into Linux. What IBM has indicated to the public is they have contributed to Linux and SCO wants to know what it is they are referring to.

Judge: SCO has also made comments in public about what SCO would show in court. The idea is to prove why/why not compel discovery

K. McBride: We will comply with interrogatives 12 and 13 if the Court wishes but would like to focus on interrogatives 1,2,4. SCO wants all development notes, source code, etc on AIX then they can compare and see what the violations are.

Judge: Reference to a case with Utah Medical Products and another with Lukadia (Sp). Something about knowing what is relevant to future discovery.

K. McBride: SCO has to distinguish what code violations is part of copyright, contract, or trade secret law. Has to see what IBM has included. Will be filing a copyright infringement case in a few weeks.

Continues on with a characterization of Unix-Ware,Unix on Intel. Explanation of the Monterrey project and the sharing of SCO technology with IBM for Unix on Linux OS.

Judge: Has SCO shown what secrets were stolen?

Marriott: Has not.

Marriott: I will show that 1. Information about Operating Systems and source code 2. Why Judge's preliminary decision is correct 3. Short-comings of SCO's discovery.

Points out that Plaintiff has distributed Linux for a long time. States that the crux of argument is in paragraph 101 of the case. Marriott hands out two books one book is thick (800+ pages) and the other is thinner (300+ pages). The thick book is print out of a file from the 2.5 Linux. The thin book is a print out from a file from AIX. Using the books he says that IBM has been accused of taking code from the small private book and putting it into the large public book, but won't say what code is in question. SCO has so far just handed IBM the small book and said the volitions are in there.

Siting a Xerox case an one other the burden of proof is places on the Plaintiff. SCO has not identified specifically on Unix file in question. Nor have they identified on single file in Linux that is in question. SCO has been touting the existence of evidence but has not shown any. SCO executives have repeatedly said in the media there is evidence of violations but IBM has not seen the evidence

SCO has not even shown IBM the apparent evidence SCO has shown to the rest of the world under NDA. Marriott states that SCO is even going after other companies that use Linux. SCO is accusing Linux users of violations when they haven't even shown IBM what the Linux violations are.

K. McBride: SCO must see the AIX derivative works to clarify what law applies to the violations. The evidence that is SCO executives are talking about is contributions of SysV code to Linux by SGI. IBM has put Dynix code and derivative code into Linux and SCO wants to see it. SCO has produced 100 more CDs than IBM has during discovery. SCO wants IBM to produce all Dynix and AIX code to derive evidence.

Marriott: IBM can produce the Dynix code and did so as of yesterday. IBM can also produce the derivitive code, but IBM will not, unless compelled to, provide all 40 million lines of AIX code.

K. McBride: We want all 40 million lines of code. We will give it to our experts so they can digest it.

Marriott: Because Linux is open to the public you can go on to the Internet to any number of sites and look up the offending code.

Judge: The initial order is appropriate. Will grant IBM motion to compel both interrogatives 12 and 13. SCO must file response in 30 days. SCO must file affidavit if they cannot respond. SCO is to correct deficiencies in affidavit filed 11/4/2003. Does Mr. K. McBride want IBM to indicate which files they want from SCO?

Marriott: We want what SCO has said 5 months ago they were going to give us. There is nothing new here on what we need.

Judge: All discovery will be postponed until SCO has responded to IBM. Next hearing 1/23/2004 at 10:00 is all motions are addressed. Will not rule on SCO' s motions. Will address them in January if SCO has completed motions

K. McBride: Can we have that date put on hold if we need more time.

Judge: I will hold you to the 30 days but the hearing date can be changed.