We Have a Winner for Best FUD of the Day

by Pamela Jones
Groklaw

February 12 2005

Some folks I know over at SCO are peeved that no one sees that they won a victory in the latest clash in the SCO vs. IBM saga.

One such objector said, "If the whole world took everything that some people said as the gospel truth, then no, this wouldn't look very good for SCO. How they're able to take the judge's denial of all of IBM's Preliminary Summary Judgments and say that this is an awful day for SCO is beyond me though. I wouldn't say that it was a win for either side, but it also wasn't a one-sided loss for SCO as some would have the world believe."

Vaughan-Nichols writes that if this was in any way a victory for SCO, it was a Pyrrhic victory. So he goes on to imagine what will happen to SCO next, what kind of death they will have. He believes they won't linger and die slowly. It's will be more like a massive heart attack.

So they're working the phones, I gather, and some journalists are responding.

The Seattle Times stesses [ http://seattletimes.nwsource.com/html/businesstechnology/2002177178_scolinux11.html ] that the judge rejected IBM's "petition to dismiss parts of SCO suit," natch. It's too late to matter, though. But it's fun to watch. Maureen O'Gara gets an honorable mention for her spin, namely that the Order means the case may go to trial after all. I guess she missed the part where the judge told IBM they can renew or refile the second discovery is finished. I also thought it didn't merit first place because it was sort of just parroting SCO's released statement that they looked forward to their day in court. Say, isn't that what all the Enron defendants said?

And Laura DiDio almost won with her appraisal [ http://www.eweek.com/article2/0,1759,1763785,00.asp ] that there is still a copyright cloud over Linux, the day after the Judge said there is no credible evidence of any such thing. But can anyone top this EETimes paragraph [ http://www.eetimes.com/sys/news/showArticle.jhtml?articleID=60400132 ] for pure FUD upside-downness?

U.S. District Judge Dale Kimball refused IBM's request on Wednesday (Feb. 9), citing previous statements by SCO executives that parts of its proprietary Unix code had been copied for use in freely distributed Linux operating system software.

Priceless, no? Such devilish subtlety. So I say we have a winner.

Of course, I wouldn't want you to think I have a bias and only report pro-SCO reactions, so here's Larry Rosen, quoted by Vaughan-Nichols, who said the judge was just making sure there is no basis for SCO to appeal and added, "We should let SCO and IBM continue to battle over the remaining contract causes of action until, ultimately, SCO will crawl back into its grave with the stake in its evil heart."

A number of "experts" pointed out that it is still possible that SCO can find some evidence of copyright infringement in the additional discovery that has just been ordered turned over to them. That is true. It is conceivable, although personally I doubt it. However, that doesn't change the fact that the judge, who has seen all the evidence, sealed and unsealed, has gone on record as saying that they have presented no credible evidence of copyright infringement to date.

That would mean, one assumes, that their public statements alleging a mountain of evidence of copyright infringement were not founded on any proof in hand at the time the statements were made. That puts SCO seriously in hot water, with respect to the Lanham Act. Lamlaw puts it this way:

"This early effort by IBM also makes it clear to the court now that when SCO made all of those public accusations, SCO did not have sufficient evidence of any potential copyright violations. So even if SCO scrapes up some stuff as a result of the discovery from this time forward, it will be clear to the judge that false statements were in fact made previously. In other words, when the public statements were made they were known to be false. And that imposes a very real possibility of judgments against SCO (even if they do scrape up some stuff). The test will be whether statements were false at the time and whether SCO knew they were false at the time. Should it turn out that SCO finds some stuff, SCO could still lose a judgment against them for the false public statements. Clearly SCO's many public statements are already front and center as far as the judge is concerned. He has already referenced them in this order. So the judge is on top of it all."

If you say or write negative things about someone, and they are not true, and especially if you know when you say them that you have no proof to back up the statement, and it turns out that what you said or wrote is demonstrably not true, it's called libel or slander. It doesn't even matter if you believed what you said or wrote was true. Judge Kimball has just said that SCO has presented no evidence to support those statements it made trashing IBM. What is there, then, that can possibly absolve them of that or diminish their liability, even if they later find some violation? Not only is this serious for SCO in the IBM case in terms of damages, I am sure Red Hat is positively salivating for their turn at bat.

I see only one hope for SCO, one other possibility. SCO might have some evidence that, for one reason or another, they are not presenting, but if that turns out to be so, they are in hot water of a different kind.

All I can say, then, is, may SCO continue to have many more such "victories" until there is nothing left of them but an old blues song.

09:32 AM EST

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