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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 4

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:

Good Legal Pleadings, Programming, and Writing

Writing good legal pleadings such as a complaint or an answer is in many ways not all that different from writing a good computer program or a good story. All need to be laid out in a logical order and make sense. None can have holes. When a reader or a computer has finished reading the legal pleading, story, or computer program there should be no doubts nor should any questions need to be asked.

If there is a missing step, ambiguous instruction, undefined term, inadequate information, and so forth in a computer program the computer will not be able to fully and completely execute the program. Each separate instruction must be parsed. It's not all that different in a legal proceeding.

In many ways, the manner in which a trial court reaches a decision is not that different from the way a computer executes a program. For each alleged legal wrongdoing (count or cause of action) there is a set of essential elemental facts which must coalesce in order for the plaintiff to prove to the court that the plaintiff was wronged and should be compensated for the wrong.

The complaint must in a logical, articulate, particular, concise, and definite way set forth notice of the material facts which support each essential element of the legal wrongdoing. A complaint that fails to do that can and should be summarily dismissed without the need for the defendant ever having to file an answer. It's much the same as a computer dumping a program it cannot execute -- if it is not written correctly it gets kicked out.

Likewise, the answer to the complaint must in a logical, articulate, particular, concise, and definite way set forth notice of the material facts that refute each essential element of the legal wrongdoing. A answer that fails to do that fails to put the material issues in dispute. Absent an answer that puts the essential elements of a legal wrongdoing in dispute, the court can and should summarily enter a judgment in favor of the plaintiff.

  • Your Turn to Play Lawyer

We already have shown why IBM's answers to paragraphs 74 and 75 of SCO-Caldera's Complaint are woefully inadequate and amount to falsehoods. We are not going to go through the entire Complaint and Answer paragraph by paragraph here. But much of it is more of the same.

However, here are paragraphs 74 through 86 of SCO-Caldera's Complaint with IBM's answer to each paragraph inserted immediately below the Complaint paragraph to which it responds. Take a look for yourself and see if you think IBM's answers are the truth -- or are evasions and fabrications.

Do you know enough about Linux to answer these allegations? If so chances are that IBM knows that information too. And chances are that IBM has enough information so as to form a belief as to whether the Complaint allegations are true or false.

If you need more information to try to answer these paragraphs, honestly, do not forget the Linux at IBM Web-page tree. If you can find the answers there, then IBM should have been able to do so too.

Or just surf the Internet to see what answers you can find. If you can find the answers then IBM could have and should have found them too.

Check out The Linux Uprising, in Business Week article to which IBM's Linux at IBM Web-page tree links. There is plenty of information there upon which IBM could have formulated an opinion as to the truth of SCO-Caldera's allegations.

As you go through each of the Complaint and Answer paragraphs below, if you have enough information to formulate an opinion as to whether an allegation is true or false, then you have enough information to answer the allegation as admitted or denied.

Here is your chance to see if you are smarter and more honest than IBM and its lawyers. Try to honestly answer each of these Complaint paragraphs yourself. If necessary, feel free to parse any Complaint paragraphs that ought to be parsed for answering.

Playing the role of IBM here, if you do not have information to form a belief as to the truth of an allegation then you are obliged to make a reasonable investigation to gain that information. Searching the Linux at IBM Web-page tree would be part of such a reasonable investigation. So would reading The Linux Uprising, in Business Week article. And so would surfing the Internet.

When you are searching the Internet, please do not forget that the Linux gurus and experts have answered many of these questions in interviews with MozillaQuest Magazine. These experts include Allen Brown, Alan Cox, Richard Gooch, Richard Stallman, Linus Torvalds, and David Weinehall.

IBM's Answers to Complaint Paragraphs 74 - 86 and 91

The Introduction of Linux

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 states [sic] it is without information sufficient to form a belief as to precisely how Linux was developed and whether it is popular among computer enthusiasts.

Complaint: 75. The name "Linux" is commonly understood in the computing industry to be a combination of the word "UNIX" (referring to the UNIX operating system) and the name "Linus." The name "Linus" was taken from the person who introduced Linux to the computing world, Linus Torvalds. 

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 75.

Complaint: 76. The initial market positioning of Linux was to create a free UNIX-like operating system to be used by developers and computer hobbyists in personal, experimental, and not-for-profit applications. As such, Linux posed little, if any, commercial threat to UNIX.

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 76.

The General Public License

Complaint: 77.  Related to the development of the open source software development movement in the computing world, an organization was founded by former MIT professor Richard Stallman entitled "GNU." 

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 77.

Complaint: 78.  The primary purpose of the GNU organization is to create free software based on valuable commercial software. The primary operating system advanced by GNU is Linux.

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 78.

Complaint: 79. In order to assure that the Linux operating system (and other software) would remain free of charge and not-for-profit, GNU created a licensing agreement entitled the General Public License ("GPL"). 

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 79, except refers to the referenced document for its contents.

Complaint: 80. Any software licensed under the GPL (including Linux) must, by its terms, not be held proprietary or confidential, and may not be claimed by any party as a trade secret or copyright property. 

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 80, except refers to the referenced document for its contents.

Complaint: 81. In addition, the GPL provides that, unlike SCO's UNIX operating system or IBM's AIX operating system or Sun's Solaris operating system, no warranty whatsoever runs with its software.GPL includes the following language:

NO WARRANTY

BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 81, except refers to the referenced document for its contents.

Limitations of Linux Before IBM's Involvement

Complaint: 82. Linux started as a hobby project of a 19-year old student. Linux has evolved through bits and pieces of various contributions by numerous software developers using single processor computers. Virtually none of these software developers and hobbyists had access to enterprise-scale equipment and testing facilities for Linux development.  Without access to such equipment, facilities, sophisticated methods, concepts and coordinated know-how, it would be difficult or impossible for the Linux development community to create a grade of Linux adequate for enterprise use.

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 82.

Complaint: 83. As long as the Linux development process remained uncoordinated and random, it posed little or no threat to SCO, or to other UNIX vendors, for at least two major reasons: (a) Linux quality was inadequate since it was not developed and tested in coordination for enterprise use and (b) enterprise customer acceptance was non-existent because Linux was viewed by enterprise customers as a "fringe" software product.

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 83.

Complaint: 84. Prior to IBM's involvement, Linux was the software equivalent of a bicycle.  UNIX was the software equivalent of a luxury car. To make Linux of necessary quality for use by enterprise customers, it must be re-designed so that Linux also becomes the software equivalent of a luxury car. This re-design is not technologically feasible or even possible at the enterprise level without (1) a high degree of design coordination, (2) access to expensive and sophisticated design and testing equipment; (3) access to UNIX code, methods and concepts; (4) UNIX architectural experience; and (5) a very significant financial investment.

Answer: [IBM] Denies the averments of paragraph 84, except states it is without information sufficient to form a belief as to the truth of the averments as they relate to IBM.

Without the qualifications without information sufficient to form a belief and as they relate to IBM this answer would be a nice and welcome denial to SCO's allegations insulting Linux.

Initially, SCO-Caldera should have parsed this Complaint paragraph in the same manner we parsed paragraph 74, above. However, it did not.

In that case, IBM should have parsed this Complaint paragraph in order to separately, particularly, and clearly carve a response to each and every separate fact that SCO alleges in paragraph 84. Unfortunately, IBM did not do that. And therefore, because IBM does not make a clear and specific denial of the Linux-insulting allegations in SCO-Caldera's Complaint, we are constrained to construe IBM as not denying SCO-Caldera's Linux-insulting allegations set forth in Complaint paragraph 84.

Complaint: 85.  For example, Linux is currently capable of coordinating the simultaneous performance of 4 computer processors. UNIX, on the other hand, commonly links 16 processors and can successfully link up to 32 processors for simultaneous operation. This difference in memory management performance is very significant to enterprise customers who need extremely high computing capabilities for complex tasks. The ability to accomplish this task successfully has taken AT&T, Novell and SCO at least 20 years, with access to expensive equipment for design and testing, well-trained UNIX engineers and a wealth of experience in UNIX methods and concepts. 

Answer: [IBM] States that it is without sufficient information to form a belief as to the truth of the averments of paragraph 85.

These are just a few examples of instances where either IBM clearly is not telling the truth and/or does not have a clue about its own business and/or the Linux and Unix products it develops, services, supports, and or markets. We believe that IBM does have the Linux and Unix business and product knowledge. Therefore, we believe that IBM is not telling the truth in its Answer to SCO-Caldera's Complaint.


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



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

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


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Caldera/SCO 3.1.1 OpenLinux Distribution Gains LSB Certification


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