Lawyers Flock to Mystery Web Site's Coverage of SCO-IBM Suit
Brenda Sandburg
The Recorder
September 9, 2005
No one knows for sure who Pamela Jones is: where she's worked, where she lives,
what she looks like or why she's so obsessed with a lawsuit by the SCO Group Inc.
against IBM Corp.
But that doesn't stop lawyers embroiled in the breach of contract and trade secret
violations case from being mesmerized by her Web site, http://www.groklaw.net/.
Jones, who identifies herself only as a journalist with a paralegal background,
is the definitive source for information on the SCO litigation.
Morrison and Foerster's Michael Jacobs
Jason Doiy
"I challenge my colleagues in the bar to find a case that is watched at this level
of detail," said Morrison & Foerster partner Michael Jacobs, who is representing
Novell Corp. in related litigation.
Jones, who responds to questions from the media only by e-mail, said that when she
launched Groklaw she wanted to focus on one case and picked SCO because of its interest
to the free software and open source community. She believes SCO's suit is an attack
on free software.
"I never expected Groklaw to become well-known or so popular," wrote Jones, who
won't reveal where she worked as a paralegal. "I'm a very private, shy person. I'm
positive if I'd known in advance that Groklaw would become so popular, I'd never
have done it."
MoFo's Jacobs has even used Jones' analysis of one of his reply briefs as a training
tool for associates.
"When she parses our briefs, it's extraordinary," Jacobs says.
Jones launched Groklaw in 2003 after Lindon, Utah-based SCO sued IBM for breach
of contract and misappropriation of trade secrets, seeking more than $1 billion
in damages. SCO claims the computer giant used SCO's proprietary Unix code and donated
derivative works to the Linux operating system.
SCO officials have been critical of Jones' Web site, suggesting in media interviews
that she may have ties to IBM, an allegation that Jones denies.
But regardless of how SCO feels about Jones, the company's lawyers do respect her
attention to detail. "What I admire about [the Web site] is the effort and intensity
and constancy," said SCO lawyer Edward Normand, a partner at Boies, Schiller & Flexner.
Normand does say Groklaw's pro-IBM slant can be misleading. "In the past 10 or 12
months of litigation there have been some pretty bad rulings for IBM, but it would
be hard to tell from reading Groklaw that they are bad," Normand said. For example,
he said, the court denied IBM's motion for summary judgment and ordered the company
to produce information in discovery.
As for speculation by SCO supporters that IBM is secretly backing her, Jones calls
such talk silly. Jones says IBM is too savvy to do something like that since that
would come out in discovery. And besides, she said, her views diverge from IBM.
For example, she believes software patents are hindering innovation.
"The whole point of doing Groklaw was to give voice to the one group that was not
a party to the litigation but would be impacted directly by the outcome: the authors
of the Linux kernel," she wrote in an e-mail. "Only a small part of the kernel is
IBM's contribution."
The term "grok" was coined by science fiction writer Robert Heinlein in "Stranger
in a Strange Land." Part of a fictional Martian language, the word means to understand
something thoroughly. Jones said her goal was to help the free software and open
source community understand the legal process better.
Lawyers involved in the litigation have also used her site to find legal documents
and track the history of the case.
"I've never seen anything like it myself," said Michelle Miller, one of the vice
chairs of the litigation department at Wilmer Cutler Pickering Hale and Dorr who
represents DaimlerChrysler and Red Hat in separate SCO suits. She said her firm
would find things on the site before the court sent out a notice.
Unraveling SCO's litigation web with IBM requires going back to the 1960s and 1970s
when employees at AT&T Bell Laboratories built the Unix computer operating system.
AT&T sold its Unix operating business to Novell Inc. in 1993. There is now a dispute
over who owns it.
SCO claims its predecessor company bought the business from Novell in 1995, but
Novell contends it only sold licensing rights to SCO and retained the copyrights
to the Unix system. SCO filed suit against Novell last year for claiming ownership
of the system.
Over the years several companies have developed their own commercial versions of
the Unix system while others have focused on making improvements to the GNU/Linux
free operating system.
In 1983, Richard Stallman resigned from his post at the Massachusetts Institute
of Technology and launched the GNU project with the goal of creating a free Unix-compatible
operating system. Today the GNU system is usually used with Linux as the kernel.
People who contribute software code for this system do so under a general public
license that allows anyone to use the code for free. The GPL is issued by Stallman's
Free Software Foundation.
SCO contends that in donating modified Unix code to Linux programmers IBM breached
the terms of AT&T's licensing agreement, which restricted use of the code.
David Marriott, a partner at Cravath, Swaine & Moore who is representing IBM, said
his client did not wish to discuss the case in the media.
In court filings, IBM contends that SCO is claiming rights to Unix and Linux that
it does not have in order to extract windfall profits and block competing operating
systems.
SCO, formerly Caldera Systems Inc., was previously a Linux distributor. A Caldera
holding company acquired the Unix division of the Santa Cruz Operation in 2001 and
Caldera changed its name to SCO and went back to selling Unix software products.
It's made a big investment in pursuing IBM for violating its intellectual property.
In a filing with the Securities and Exchange Commission, SCO said it expects to
spend approximately $7 million in IP litigation during the remainder of the year
ending Oct. 31, 2005.
In addition to its suit against IBM, SCO filed separate complaints against two companies
that use the Unix operating system, AutoZone Inc. and DaimlerChrysler. SCO claimed
the auto parts chain infringed its copyrighted software code, and it alleged DaimlerChrysler
had failed to certify proper use of the Unix code. Most of the DaimlerChrysler case
was dismissed, and the AutoZone suit has been stayed pending the outcome of the
IBM suit.
Red Hat Inc., the largest distributor of Linux, also jumped into the fray. In 2003
it filed a complaint against SCO seeking a declaratory judgment that it was not
infringing the company's copyright. That suit has also been stayed pending the outcome
of the IBM case.
The complaint, SCO v. IBM, 03-00294, is set for trial in Feb. 26, 2007, before U.S.
District Judge Dale Kimball of the District of Utah.
"Technically, it's pretty daunting going through years of source code," Normand
said.
While the lawyers continue to slog through discovery, Groklaw's creator has been
at the center of a media frenzy in the tech community.
In May, freelance writer Maureen O'Gara penned a withering article for an online
newsletter called Linux Business News claiming she had uncovered the identity of
"the elusive harridan who supposedly writes the Groklaw blog." She wrote that Jones
was a 61-year-old woman living in a garden apartment in Hartsdale, N.Y., and included
her address, phone number and religious affiliation.
In response to an outcry from members of the open source community, Sys-Con Media,
publisher of the newsletter, deleted the article and announced it would no longer
run O'Gara's articles.
Jones declined to comment on the O'Gara piece. She said in a May 9 Groklaw posting
that she was considering taking legal action.
Meanwhile, a SCO supporter filed suit against Jones and other Web site operators
who oppose SCO's position. In a June 21 complaint, Jeffrey Merkey, a former Novell
computer scientist living in Lindon, Utah, claims the plaintiffs have defamed him
and tried to undermine SCO's lawsuits with threats of "murder, violence, death,
oppression, mob mentality ... and threats to overthrow governmental systems." He
also claims the Linux and open source software have allowed U.S. technology to fall
into the hands of al-Qaida.
This soap opera is an entertaining twist for the lawyers involved in the SCO litigation.
"This case has aroused passions in the software community, and even the commentators
are viewed as partisans," MoFo's Jacobs said. "It's a bit like litigating a case
on 'Crossfire.'"
Copyright 2005