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SCO vs IBM Latest: SCO To Request Unsealing of Most Documents, Claims O'Gara

"Near as we can piece together, SCO intends to charge IBM with fraud," O'Gara writes

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    "SCO is chafing badly under the propaganda war it's losing to Groklaw," writes Maureen O'Gara, who describes Groklaw as "the pro-IBM Web site that's following its $5 billion case against IBM."

    Her controversial report continues: 

    SCO and its legal A-Team of Boies and Silver want the world to start seeing the case the way they see it and are going to file a motion asking the court to unseal most of the documents that are currently under seal.

    What it wants aired are IBM's e-mails, which they think tell a killer story about AIX, Dynix and Project Monterey.

    SCO says that by the end of the month it is also going to amend its contract suit against IBM - SCO's suit last time we looked was a contract case although that fact sometimes gets lost - and include the Monterey Project based on evidence that turned up in the discovery that IBM has provided so far.

    Near as we can piece together, SCO intends to charge IBM with fraud.

    Supposedly sometime in the first half of 2000 IBM made a course correction to Linux and away from Monterey, which was the IBM-SCO-Intel initiative to move AIX to the Itanium, a project that Sequent and Dynix ultimately got bolted on to too. It was, as we recall, supposed to be the (as in THE) mainstream operating system.

    However, after IBM decided to back Linux, it supposedly concocted a scheme to put out an Itanium product, then kill it immediately, thinking that if it did that it would trigger some licensing rights - that were allegedly non-existent, according to SCO - to use Monterey code for Power and thereby have a product they could use against Sun.

    See, IBM was on Unix System 3 and Sun was on System V and IBM needed to catch up, but, according to SCO, didn't want to pay SCO for it, hence the new charges. Supposedly SCO never knew any of this before it stumbled over it in IBM's discovery.

    SCO has also finally decided to set up a site of its own to house all the myriad legal documents the suit has created so people won't have to go to Groklaw and read its anti-SCO philippics.

    Meanwhile, on Wednesday District Court Judge Dale Kimball sat through three-and-a-half hours worth of oral arguments on four motions in the SCO-IBM case, the most substantive of which - as near as we can figure out - was IBM's eye-crossing cross-motion for partial summary judgment on its claim for a declaratory judgment of non-infringement.

    At the risk of practicing law without a license - and with due reverence for Cravath, Swaine's abilities to move the ball even you're looking plum at it - this motion and its little friends look like one of those red herrings that may fetch IBM a lot of PR yardage, but may not ultimately score a touchdown.

    IBM's premise started with asking the court to declare Linux free of any SCO copyright claims. Again near as we can figure out given all the easily misleading legal talk, Cravath, Swaine's boys, IBM's lawyers, modified their position at the hearing the other day and simply asked Judge Kimball to rule that the widgetry IBM contributed to Linux didn't infringe on any claimed SCO copyrights.

    Well, now, Cravath, Swaine accomplished that maneuver quite nicely - with help from some stylistic faux pas by SCO's side - and will probably win that round for all we know - but darned if we can remember SCO ever charging IBM with that.

    The only copyright charge we remember SCO making has to do with IBM continuing to distribute AIX after SCO claims it pulled its AIX license.

    However, if IBM does win its motion, then it - or its factotums - will be able to claim victory and seek to reassure users to keep on buying Linux.

    Anyway, Judge Kimball decided to give this and the other three motions he heard a think and postponed his decision. Then he took a stab at ending the discovery deadlock between IBM and SCO - having previously refused to discuss SCO's myriad complaints about IBM's refusing to turn over discovery - and told IBM to turn in its reply to SCO's latest motions trying to shake the CVMC source tree out of IBM by Wednesday, September 22 and told SCO to file its reply to whatever IBM has to say two days later, on September 24. After that, the ball will be in the judge's court.


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  • SCO's Linux Licensing in Shambles; Company Caps Lawyers' Fees
  • 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
    Henrik Ræder Clausen 09/18/04 11:29:47 AM EDT

    > The only copyright charge we remember SCO making has
    > to do with IBM continuing to distribute AIX after SCO
    > claims it pulled its AIX license.

    Jeezz... I happen to remember the base for pulling that license. It was due to IBM contributing RCU, NUMA, JFS and other nice technologies *developed by IBM* to Linux, claiming that was a copyright infringenment. Then they 'revoked' the license and sued IBM.

    Later they removed the copyright claims from the case, changing the main claim to IBM continuing to distribute AIX after they terminated the license - perfectly disregarding that they had themselves stepped down from the claims that formed the base of the termination.

    I hope next time you post an article on the subject you'll have time to dig out the original documents in the case. This one seems to indicate that your memory is not the best of your qualities. Better luck next time :)

    Jim Storch 09/18/04 11:21:03 AM EDT

    They should coin a phrase like "Endertorial" for pieces written to delibrately incite outrage and page hits. You see, when Enderle, Lyons, and O'Gara write silliness like this 99% of their readership are folks who give them zero credibility to begin with so you really can't call it a FUD piece.

    Fred Grott 09/18/04 11:15:38 AM EDT

    I feel sorry for Maureen..

    Here is all that advertiser pressure in generating what questions she ask TSCOG in q conference call and generating her stories from her instead of using that jorunalistic brain that I know she has..

    There are several TSCOG facts form the press release in this article that are not facts at all but Bullshit as proved in what has been found in the discovery documents that allegedly Maureen claimed that she read..

    My Biases: I am a free JDJ(a SYS-CON property) subscriber and that is ending as I can't supprot in anway horseshit like this..

    Jez 09/18/04 10:23:24 AM EDT

    Nul points for credibility, as usual for Maureen. No other commentator has regurgitated the SCO line so slavishly or for so long. Does she have SCOX shares or what?

    Rob 09/18/04 10:17:37 AM EDT

    Marueen,

    Did you miss the part of suit where TSG claimed (paraphrased) that IBM, through its Linux activities, infringed, and induced others to infringe, TSG's IP rights?

    If you are going to cover this story, you would do well to fact-check the relevent documents before writing such as this. The bit you posted sounds more like the spin TSG is now trying to pull.

    RK 09/18/04 09:52:44 AM EDT

    Incidentally, who is this "we" who can't remember SCO bringing up claims of copyright infringement? Is this everyone involved with Linux World, is it Maureen and some friends or who?

    Tsu Dho Nimh 09/18/04 09:42:41 AM EDT

    "Supposedly sometime in the first half of 2000 IBM made a course correction to Linux and way from Monterey, which was the IBM-SCO-Intel initiative to move AIX to the Itanium, a project that Sequent and Dynix ultimately got bolted on to too. It was, as we recall, supposed to be the (as in THE) mainstream operating system."

    Maureen, Maureen, Maureen ... if you are going to use football analogies, please keep your eyes on the ball! The "SCO" of Project Monterey was the Santa Cruz Organization, not the SCO Group of today. When IBM made that "course correction to Linux", CALDERA was one of the participants in the 64-bit Linux project. Caldera bought the UNIX licensing business from the Santa Cruz Organization (who are now called Tarentella). CALDERA changed its name to "The SCO Group" only after they had already started the litigation against IBM. The SCO group is in the awkward position of trying to claim that they are surprised and shocked that IBM was working on a Linux Project with Caldera ... they suffer from selective amnesia about their corporate history.

    And as for that "A Team" of lawyers ... Boies has yet to show up in anything buyt a few conference calls, leaving the work to what is definitely a C-team from Utah and a drudge or two from the Florida office. Silver? Silver was reported as dozing in the courtroomn during this week's hearing.

    ccs 09/18/04 09:38:41 AM EDT

    Dear Maureen,
    do you actually read the courts documents and docket?
    Or only SCO's press releases?
    Because if you read the docs you either don't understand any english, or you blatantly lie.
    If it's only the press realeases you probably choose the wrong job (journalist?).

    Here is a link to the docket in this case (official web site of Utah Federal District Court), so you can (re-?)read them and give a reliable and truthfull account of the case:
    http://www.utd.uscourts.gov/documents/ibm_hist.html

    Will we ever see that?
    After reading this article, i doubt it very much

    Gary 09/18/04 09:33:48 AM EDT

    I think like many observers, I started out believing that SCO may have a good case. Their theory of the case sounded plausible. Everyone knows IBM is a 900 lb gorilla in the industry. When Darl said over and over "millions of lines of code", "Truckloads", "Six teams from MIT" I thought , wow, IBM should settle!. But then, I waited, and waited. Where is one single line of these millions of line of code ? Why does SCO need AIX to show there is Unix in Linux ? I am a dumb nurse, no Linux experince, no religous affiliation to my operating system. But I have common sense, and I just do not see anyway that SCO has anything on IBM, or it would have come out by now.

    RK 09/18/04 09:20:24 AM EDT

    I think that Maureen O'Gara must have a strong disliking for and distrust of IBM arising from events in the past. She may well be fully justified in those feelings, it's hard to tell without more details, but continuing to repeat anything SCO says as though it has a basis in fact is really undermining her credibility. By this stage everyone has noticed that Darl McBride and his team tend to lie a lot.

    The pretence of amnesia about all SCO's claims of copyright infringement is just weird. Missing the point that SCO told the Red Hat court that these claims would be considered in the IBM case just adds to that.

    Reporting SCO's current version of events is good and worthwhile. Portraying it as fact is something else entirely.

    Jim Olsson 09/18/04 09:17:35 AM EDT

    This is just bullshit. If you read the legal papers you will find that SCO want to use the threat of litigation as extortion. Unfortunately, Maureen O'Gara does not want to investigate enough time to present the readers with good articles. Seemingly, her strategy is to write about gossip emanating from SCO. This is bad for Linuxworld because it suggest that the other articles on this site are badly researched as well.

    K H 09/18/04 08:52:49 AM EDT

    After everything that SCO has claimed that's turned out to be false, why do you insist on repeating SCO public claims as facts? I might have waited to see if SCO really takes any of this to court first.

    unixlover 09/18/04 08:31:03 AM EDT

    Stylistic fax pas? HA HA HA HA HAW!
    <|^D

    flimbag 09/18/04 08:27:43 AM EDT

    Ah, what a short memory you have, Maureen. Don't you recall writing this:

    "Informed sources, who would only talk on the guarantee of anonymity, say SCO has been proposing to charge users $96 per CPU for a so-called one-time System 5 for Linux software license to protect their systems from SCO-enforced patent issues if they ante up as soon as demand is made. The fee would go up to $149 per CPU if SCO had to wait through a so-called 99-day "amnesty period" for its money. Users of SCO Linux would get a free System 5 license. They would also have the free right to run SCO Unix apps on Linux."

    It appears that you've been having trouble following this case, so perhaps we can help you out. The lawsuit isn't just about SCO's claims against IBM, it's also about IBM's counterclaims against SCO, for seeking to interfere with their business in violation of the Lanham Act. Much of the basis of those counter-claims involve the way that SCO has been making all manner of false claims about IBM's breach of SCO's copyrights. Remember those MIT deep divers? Well guess what? Not only do they not exist, but at the last court hearing, SCO's lawyers admitted that there have never been *any* expert investigations into whether Linux code infringes on Unix.

    So if this is just about IBM's breach of contract claim, what the hell is the SCOsource license about? Well, in your article which I quote above, you said "the scheme (...) sounds pretty much like a protection racket. We won't sue if you pay."

    When did you change your mind, Maureen? And why?