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

SCO's Lawyers, Another Young Thing From Boies, Schiller & Flexner Was Smooth Enough to Impress Even Groklaw's IBM-dazzled Observ

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.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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Most Recent Comments
Weekend Editor 10/23/04 01:56:59 PM EDT

Hello Henry,

Thank you for your feedback. I think we are in great hands as far as our new development team goes. Also, we reserved a Web page for you in the upcoming release of our new Web site.

www.drefeldt.linuxworld.com

We hope you will be able to use it to raise your opinion and share it with the rest of our readers and the Linux community. Thanks again and have a great weekend!

Maryann

Henry Drefeldt 10/23/04 01:56:41 PM EDT

I think that in addition to getting a few web developer that knows how to make webpages readable, getting some with enough knowledge and integrity to make their opinions worth reading.

G. Karn 10/23/04 01:52:47 PM EDT

Maureen is nothing more than a low-level hack, without a single original thought in her teeny little "brain". As far as the garbage she copies out of the SCO press releases "reporting" reminds me of a quote by Truman Capote commenting on a lousy author's work: "That's not writing, that's typing."

Max 10/23/04 01:48:08 PM EDT

Maureen O'Gara is as full of crap as a Christamas goose. Talk about a transparent shill for SCO, her article is laughable in the extreme. Maureen, why don't you do some real research before you parrot the SCO press releases?

PS- This site is awful- you can hardly tell where the ads stop and the article begins....and that's probably by design.

David 10/23/04 01:33:53 PM EDT

As mentioned once or twice already, the current SCOX has nothing to do with the old SCO, and Judge Kimball has already noted *in court* that it is highly questionable as to if SCOX owns *ANY* part of UNIX.

Before you write such crap, perhaps you should acctually pay attention to what is going on in the case, rather than just the stuff either/any party puts out in their press releases.

Reba McIntire 10/23/04 01:32:20 PM EDT

Anything by Maureen O'Gara can be disregarded. Like Dan Lyons, Rob Enderle, and Laura Didio.

Patrick O'Grady 10/23/04 01:23:46 PM EDT

Maureen's propensity for slanting towards SCO is so well known it's quite surprising anyone takes her hack "journalism" seriously anymore. Anyways, IBM has produced all the discovery it was ordered to under a previous ruling. There's nothing new here. The order isn't under seal "reportedly." It's under seal, period. If you want to know why, don't ask Maureen O'Gara, ask the Court.

SCO has nothing to provide re discovery that I am aware of. That's their problem. They have nothing. The materials they've shown in public have been dismissed so soundly and quickly that they seem to realize they can't produce anything without having it shot down. Their claims in court re code transfer have been completely unsubstantiated by any evidence. They're like a starving dog waiting for IBM to throw them a bone they can gnaw at until the value is completely sucked out of their stock.

And yes, this website's design is hideous.

Pete S 10/23/04 01:21:55 PM EDT

Another comment:

You say, in part:
<>

Were you there?

If so, you would have noted gross violation of confidentiality rules by SCOX attorneys (reading aloud a privileged document). Do you have any comment on this?

Do tell us - were you actually there? We can always ask Bob Mims of the Salt Lake Tribune.

Pete S

daniel wallace 10/23/04 01:11:28 PM EDT

The biggest difference between IBM and Microsoft
is that Microsoft has already eaten its young and
IBM is just now beginng that task.

Daniel Wallace

Pete S 10/23/04 01:08:31 PM EDT

You say:
<< IBM put SCO-owned SVR4 code >>

Facts

1. SCO may own some very limited rights to SVR4, but they are VERY limited. They do not, for instance, own any copyrights or any right to any royalties on that code (really - check it out)

2. SCO never owned (and has yet to produce any evidence thereof) of any copyrights regarding SVR4

3. Novell retains the right to waive any issue under the AT&T/IBM software agreement, and has done so.

4. SCO has engaged in a dance of lawsuits but never ever producing a scintilla of evidence.

Reasonable conclusion: More SCO FUD

Note that SCO as attributed here is NOT The Santa Cruz Operation (a decent Unix company).

Please check the background and facts before spouting off - it makes one wonder just who pays you.

Pete S

BobDole 10/23/04 12:59:44 PM EDT

This site is ugly and ad-ridden, and Maureen is a SCO shill.

Douglas Charles 10/23/04 12:50:41 PM EDT

This is a fantastic article, Maureen! I had no idea that IBM was misleading the courts of our fine country in such a fashion!

Weekend Editor 10/23/04 12:47:42 PM EDT

Welcome to one of the "ugliest" i-technology magazine Web sites in the world which offers one of the best content!

This is a quick note to thank all our readers in this forum for their feedback and opinions regarding the current version of our Web site.

We are proud to announce that our brand new Web site has been under development (with the goal of building the slickest i-technology Web site in the world) with a release date of Monday, February 14, 2005. We are confident that you will be impressed with the new features, presentation layer and and the interface of our upcoming Web site and please pardon our appearance during this construction period.

Note: A Beta release of our new Web site will be available on Wednesday, December 15, 2004 with more *new* features than anywhere you will find on the Web.

A Sneak Peek!

How would *YOU* like the opportunity to be published right on the front page of the world's most popular i-technology magazine(s) Web site, reaching tens of thousands of readers instantly, "at your very own linuxworld.com editorial page" and without needing an approval from anyone? Please stay tuned for this and hundreds of new state-of-the-art features.

You will like what you will see. Have a great weekend!

Maryann MacBride

P.S. We appreciate your suggestions and feedback, and would love to hear from you (at) management@sys-con.com

gnutechguy99 10/23/04 12:46:22 PM EDT

What does this have to do with anything? The SCO Group is NOT Santa Cruz Operation and therefore has no rights with respect to project Monterey. I see Maureen is now in charge of dispensing the SCOX Kool-Aid.

Jason H. 10/23/04 12:44:02 PM EDT

Boy, what high quality reporting here!

You might as well replace all the ads on this site with SCO FUD.

ammoQ 10/23/04 12:42:39 PM EDT

Grant wrote: "Doesn't Linux only run on Intel?". Are you joking man? Linux runs on x86, ARM, PowerPC, ia-64,
Motorola 680x0, Sun SPARC, Alpha, MIPS, HP PA-RISC, S/390, ...

Johnny Cash 10/23/04 12:40:54 PM EDT

The United States suck. Big time. Hollow idiots talking about hollow propaganda-ridden capitalistic democracy which is the opposite of freedom. Blegh. Yeah I know this is off-topic but somehow right now it was just so extremely clear to me.

Baird 10/23/04 12:40:20 PM EDT

Perhaps if you provided the actual court documents, plus giving the section your are referring to in your article you might seem remotely believable. PJ on Groklaw certainly doesn't hold back her opinion, but she quotes directly from the source, AND provides the documents for people to read themselves to form their own opinions. For that reason, I have personally read the majority of them myself, including the one you are referring to. Sorry, I cannot agree with your article at all. I can't actually remember an article of yours that I have... Oh well, maybe you draw just enough eyeballs to earn a living and a little payola occasionally. Good luck with that, bye the way.

Johnny Cash 10/23/04 12:40:12 PM EDT

The United States suck. Big time. Hollow idiots talking about hollow propaganda-ridden capitalistic democracy which is the opposite of freedom. Blegh. Yeah I know this is off-topic but somehow right now it was just so extremely clear to me.

daniel wallace 10/23/04 12:34:41 PM EDT

The "POWER" acronym stands for "Performance
Optimization With Enhanced RISC". The PowerPC
processors (Apple and the likes) are derivative
RISC designs of the original POWER architecture.

The combination of PowerPC/Linux by the IBM/Novell
consortium is the next "WinTel" platform and will
ultimately relegate Microsoft/Intel into the #2
"has-been" place in computing.

Unfortunately, FOSS is the sacrificial lamb in this
revolution as the next few months will reveal.

Daniel Wallace

Darl McBride 10/23/04 12:32:15 PM EDT

Everything Maureen has said is exactly true. I can't believe that we haven't used this in our case! Keep up the good work! We could really use some advice.

julian 10/23/04 12:26:54 PM EDT

this article seems strangely misplaced; this case has nothing to do with linux.

secondly, reading the transcript of the session itself, the apparent event of IBM saying "it can't find it" has been grossly missappropriated - taken right out of context. what's the motivation for doing this in a linuxworld article? you've obviously gone to some effort here..

julian

Not Maurren 10/23/04 12:17:33 PM EDT

Maureen,

When the transcripts become available, and your lies revealed, will you be resigning or apologizing?

Alan Coates 10/23/04 12:16:05 PM EDT

How in the world is this site even remotely serving enterprise evolution? Does anyone even read your magazine?

Kurt M 10/23/04 12:09:43 PM EDT

It's not only ugly and ad-filled, it's non-functional. Six feedback entries reported, and I see two. What's up?

Proximitron was invented for horrible websites like this one.

Darkl McBilk 10/23/04 12:03:41 PM EDT

Totally agree. The paragraph-long text ads on this site are way too much.

Grant 10/23/04 12:02:47 PM EDT

I'm not sure I understand the relation between this 'Power' architecture version of AIX/DYNIX? Doesn't Linux only run on Intel? What the point of a bunch of code for a difference processor.

Only lawyers would be able to make a connection it seems.

Alan Coates 10/23/04 12:00:45 PM EDT

I think you may not be aware of how this came about to start with, Maureen. Do you know what this is about at all? Nowhere in there did I read anything to do with SCO wanting to claim Linux as its own because they believe the Linux community stole its code. That is basically the bottom line, and they are attacking a figure with huge money resources and saying that they embody Linux, just for financial gain. Please get the whole story right, and not just comment on the petty garbage.

Roman 10/23/04 11:59:10 AM EDT

Maureen O'Gara writes: Pretty stupid if you ask me since SCO gave IBM permission to do just that - use SVR4 code in their Power MC architecture: here is link to groklaw discussing this in detail.

http://www.groklaw.net/article.php?story=20040805165447588&query=SVR4

So, Maureen, what was your point again?

Joe Smith 10/23/04 11:53:58 AM EDT

A poorly done article on an ugly site. I won't be visiting this website for news ... too many ads.

Alan Milnes 10/23/04 08:37:16 AM EDT

"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."

Maurren you talk such utter rubbish.

IBM doesn't have to produce everyting about Linux they have to produce things relevant to the lawsuit - a rather different subject especially as SCOX have failed to show any evidence of infringement and seem to be focussing more on contract claims.