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May 15, 2003

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MozillaQuest OP-ED

SCO-Caldera v IBM:

IBM Response to SCO-Caldera Complaint Is Outrageous!

Linux and the SCO-Caldera v IBM Lawsuit

By Mike Angelo -- 15 May 2003 (C) -- Page 2

Article Index

At Least IBM Contributes to the Linux Community

IBM's Evasive and Fictitious Answers

Judge for Yourself

Summary and Conclusions

Resources

SCO-Caldera v. IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

IBM Files Answer to SCO's Caldera v IBM Complaint

IBM Response to SCO-Caldera Complaint Is Outrageous!


SCO-Caldera & the GNU/Linux Community:

Court Rules Note:

Under the court rules that govern the Caldera v IBM lawsuit, the Federal Rules of Civil Procedure (F.R.C.P.), a defendant must either specifically admit or deny each and every averment of a complaint that provides notice to the defendant of factual matters. After a reasonable investigation as to the fact-based matters of an allegation, the defendant may state that he/she/it does not have sufficient information about the alleged matter of fact in order to admit or deny that matter of fact. By doing that, the defendant does not have to admit or to deny that item.

However, in its Answer to SCO-Caldera's Complaint, IBM egregiously abuses the allowance of the does not have sufficient information about the alleged matter of fact in order for it to admit or deny that matter of fact reply. IBM's misuse and abuse of that reply is so egregious that it rises to nothing less than out and out fabrication!

IBM's Evasive and Fictitious Answers

Back to the SCO-Caldera v IBM lawsuit. IBM's disappointing 30 April filing is nearly devoid of fact. It is overly evasive, and much of it is nothing less than fiction and fabrication.

For example IBM in effect says in its Answer either that it denies and/or that it has no clue as to whether:

(a) GNU is an open source development movement,

(b) Richard Stallman was an MIT professor,

(c) Richard Stallman founded GNU,

(d) Linux is a GNU-based operating system,

(e) GNU created the GPL,

(f) GPL software is open-source and non-proprietary,

(g) Linux has evolved through bits and pieces of various contributions by numerous software developers, and

(h) What are the SMP (symmetric multiprocessing) scalability of Linux and Unix operating systems, and so forth.

Does IBM really have no clue as to this stuff alleged in SCO's Caldera v IBM Complaint? That's hard to believe that IBM does not have some information and knowledge about these things.

You would think that a company that sells and supports Linux-based computer systems would know this stuff. Moreover, if you look at official IBM press releases, announcements, statements, and so forth over the past few years it is pretty darn clear that IBM does know this stuff.

Nevertheless, in effect IBM says in its Answer to the Complaint that it does not have sufficient information to form a belief as to the truth of these things. Malarkey!

It appears that either IBM has absolutely no clue as to what is Linux, a product which IBM develops, markets, and supports. Or, IBM is lying through its teeth in a court document. Which is it? Either way, it is not a pretty picture.

(Please see the Court Rules Note in the right sidebar.)

Judge for Yourself

Read on and judge for yourself whether IBM has filed an honest, truthful, and whole-truth Answer to SCO-Caldera's Complaint.

Of the 136-paragraph Complaint filed by Caldera Systems, Inc., d/b/a The SCO Group, six are particularly significant regarding the Linux kernel, the GNU/Linux operating system, and Linux distributions. Paragraphs 74 and 82 through 86 of SCO-Caldera's Complaint belittle and insult Linux developers, the Linux kernel, GNU/Linux, Linux distribution providers -- in essence the entire GNU/Linux and free software community. So, rather than look at all 136 paragraphs today, let's look just at paragraph's 74 through 86 and 91 -- with special focus on paragraphs 74, 75, 86, and 91.

IBM could have defended both itself and the Linux community by telling the truth, nothing but the truth, and the whole truth when answering SCO-Caldera's allegations. Instead, IBM elected to evade answering the questions and to willfully lie about the allegations. To see why and how, read on!

  • Analyzing SCO's Complaint and IBM's Answer

In paragraphs 74 to 86 and 91 of IBM's Answer to SCO's Caldera v IBM Complaint, IBM answers all these said paragraphs pretty much either by:

(a) simply denying the paragraph stating: IBM Denies the averments of paragraph ** and/or

(b) denying the paragraph while stating at the same time that IBM does not have a clue: IBM Denies the averments of paragraph **, except states it is without information sufficient to form a belief as to the truth of the averments or

(c) simply stating that IBM does not have a clue: IBM States that it is without sufficient information to form a belief as to the truth of the averments of paragraph **

Again, IBM by answering in this manner says it has no clue as to whether (a) GNU is an open source development movement, (b) Richard Stallman was an MIT professor, (c) Richard Stallman founded GNU, (d) Linux is a GNU-based operating system, (e) GNU created the GPL, (f) GPL software is open-source and non-proprietary, (g) Linux has evolved through bits and pieces of various contributions by numerous software developers, (h) what are the SMP scalability of Linux and Unix operating systems, and so forth.

Is not this stuff to which IBM should have a clue? If indeed IBM does have sufficient information or could have such information by making a reasonable search for it, then IBM was obligated to admit or deny the allegations.

Linux-based operating systems, software, and computer systems are products that IBM develops, markets, and supports. It certainly appears that IBM does have sufficient information in order for it to admit or deny the allegations. That means that IBM did not tell the truth when it told the Court by way of its Answer that IBM did not have sufficient information to admit or deny so many allegations. To see why that is so, read on.

  • Parsing Complaint and Answer Paragraphs 74 and 75

Note: SCO invited IBM to make an outrageous and dishonest response to SCO's Complaint by doing a terrible job of drafting the Complaint. Paragraph 74 is a good example. Under the Federal Rules of Civil Procedure and in accordance with good pleading practices, each one of those parsed parts of Complaint paragraph 74 should have been raised in a separate, numbered paragraph or set forth under one paragraph, such as paragraph 74, but as a numbered list such as done in our paragraph 74 parsing discussion here.

The underlying Federal Rule is part (b) of Rule 10: (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances . . . F.R.C.P. Rule 10. Form of Pleadings.

Complying with the pleading rules and practices in drafting a complaint makes it easier for a defendant to answer the complaint. It also makes each allegation clear as to what is being alleged. And perhaps most importantly, it enables and forces the defendant to clearly respond to each element alleged.

IBM could have and should have asked the trial court judge to require SCO-Caldera to file a properly drafted complaint. However, IBM did not do that and thereby waived its right and opportunity to have a properly drafted complaint for IBM to answer. What we are seeing in the Caldera v IBM lawsuit is lots of lousy lawyering on both sides! Enough Law 101.

Unfortunately, however, there are many lousy lawyers that engage in the same sort of incompetent pleading practice themselves that both IBM's and SCO's lawyers are doing -- and thusly would not even notice how poorly SCO pled its Complaint and IBM pled its Answer.

If any lawyers would like to dispute that (or concur for that matter), they can send an e-mail to lawyers @<nospam >mozillaquest.com -- leave the <nospam > out when you send the e-mail and use text only in the message -- do not use HTML, JS, etc. Our e-mail clients are set to read only simple text messages.

To better understand just how outrageous and dis-honest is IBM's response to SCO's Caldera v IBM Complaint, let's take a close look at paragraph 74 from the Complaint and IBM's Answer to it.

Complaint: 74. A new operating system derived from and based on UNIX recently has become popular among computer enthusiasts for use on personal, educational-based, and not-for-profit projects and initiatives. This operating system is named Linux. 

Answer: [IBM] Denies the averments of paragraph 74, excepts [sic] states it is without information sufficient to form a belief as to precisely how Linux was developed and whether it is popular among computer enthusiasts.

Please note by the way, that SCO's paragraph 74 says nothing about precisely how Linux was developed. IBM adds the precisely term as an evasive, diversionary, smokescreen.

Point is that IBM does not need to know precisely how Linux was developed in order to admit or to deny the allegations of this paragraph. All IBM needs to know is enough about Linux to form a belief as to whether Linux was derived from Unix rather than developed independently. And pretty much anyone that is active in Linux development knows about the beginnings of Linux and that Linux was not derived from Unix.

For example, this SCO claim that Linux is a Unix derivative was discussed in our 4 March 2003 article, SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip. Prophetically, that article was published just two days before SCO filed its Caldera v IBM lawsuit.

In that article, kernel.org's Richard Gooch told MozillaQuest Magazine: The fact is that "everybody" (i.e. anyone in the Linux community and many outside) knows that the Linux kernel is a 100% independent implementation of an Unix-like OS. I have never heard Linus [Torvalds] (or anyone else in the community) state otherwise.

Then in a post-lawsuit article discussion regarding this Complaint paragraph 74 issue, Richard Gooch told MozillaQuest Magazine: Linux contains no SCO source code. Frankly, even if offered freely, we probably wouldn't want it, as it's likely to be seen as bloatware. (Alan Cox, Richard Gooch, and David Weinehall Respond to SCO's Linux-Related Claims, page 3)

David Weinehall's response was: No, inspired by UNIX and conforming to Posix. Alan Cox said: Derived from - no. Inspired by - certainly. (Ibid.)

If you parse Complaint paragraph 74 it alleges:

(a) Linux is an operating system,

(b) Linux is a new operating system,

(c) Linux is based on Unix,

(d) Linux is derived from Unix,

(e) Linux is popular among computer enthusiasts, and

(f) Linux popularity is a recent popularity.

Then if you parse IBM's Answer to paragraph 74 it says:

(1) IBM denies parsed parts (a) and (b) of SCO-Caldera's Complaint paragraph 74 and

(2) IBM is without information sufficient to form a belief as to parsed parts (c) through (f) of SCO-Caldera's Complaint paragraph 74.


Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip



Resources


Related MozillaQuest Articles


SCO-Caldera v IBM:


SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip


Caldera OpenLinux 3.1.1 Available

Caldera OpenLinux Workstation 3.1 -- A First Look


UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part I

UnitedLinux, a Divisive Weapon for Caldera's Darl McBride -- Part II

SCO's Darl McBride and MozillaQuest Magazine's Mike Angelo Discuss Caldera Linux and LSB

Caldera/SCO 3.1.1 OpenLinux Distribution Gains LSB Certification


Linux Makes a Great Gift

Don't Forget the Books

LinuxWorld in New York City -- 21-24 January 2003


Other Interesting MozillaQuest Articles



Copyright 2000-2003 -- MozillaQuest -- Brodheadsville, Pa..USA -- All Rights Reserved
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