Media Reactions to Judge Wells' Order - Updated

By Pamela Jones
Groklaw

June 30 2006

For example, Andrew Orlowski in The Register, "Judge guts SCO claims -- Put up or shut up [ http://www.theregister.co.uk/2006/06/30/sco_ibm_claims/ ]":

Wells found a vivid analogy for IBM's position of having to guess why it was guilty. "Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling'. Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say 'it's in there somewhere, you figure it out'," wrote Wells.

My favorite reaction, a comment on Slashdot by corby [ http://yro.slashdot.org/yro/06/06/30/1352212.shtml ] in part, improving on Judge Brooke Wells' analogy:

Actually, it's as if you walked out of Neiman Marcus, a security guard accused you of shoplifting, and then refused to tell you what you shoplifted. Then, the guard pulls over his buddy, respected Yankee Group Laura Didio. She looks in your bag, then looks at the Neiman Marcus catalog, and announces on national media that you have stolen something from Neiman Marcus but she won't say what it is [ http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,82070,00.html ].

Three years later, during trial, the guard is still unable to explain what you stole from the store.

Ah, yes. The lovely and tireless Ms. DiDio. I bet you'd like to know what she and Mr. Enderle and the SCO gang have to say now? Here you go.

First, Bob Mims in the Salt Lake Tribune, in his article, "Judge voids most SCO claims [ http://www.sltrib.com/business/ci_3997087 ]":

SCO spokesman Blake Stowell acknowledged the ruling was a setback. "If two-thirds of your case is stricken, then it is a pretty serious matter. Our lawyers will determine how we proceed from here," he said.

However, Stowell argued that the remaining third of nearly 300 claims made by SCO still left the "foundation for a strong case." Ironically, specifics of many of those allegations are under seal to protect proprietary data.

Rob Enderle, Enderle Group chief analyst, said Wells' ruling was a solid defeat for SCO's use of a "quantity over quality approach to litigation strategy . . . . [Now] it will be vastly more difficult for them to get funding going forward as a result of the perceptions [stemming from] this decision. "And they are burning through their cash reserves very quickly," he added."

Hilarious, no? The problem is quantity over quality? I think not.

Mr. Enderle is singing a new song, i see. Remember his keynote address at SCOForum 2004 [ http://www.caldera.com/2004forum/agenda/Enderle_keynote_SCO-Forum2004.html ], on why he supported SCO, "Free Software and the Idiots who Buy It"? It's still up on SCO's website. That wasn't the original title listed on the SCOForum program [ http://www.groklaw.net/article.php?story=20040813101136846 ]. On the program, it was called, "Free Software and the Fools Who Use It," but either way, I believe we catch his drift. "Why, as I recall, he told the world that he called up SCO and they did have evidence [ http://www.enderlegroup.com/perspectives/pers_43.htm ]. They just won't tell the court what it is. Or how about this article, " Linux Community vs. SCO Battle, SCO Should Win [ http://www.eweek.com/article2/0,1759,1543531,00.asp ]. Cluestick: they didn't. It's a tad hard to win in court, unless you present evidence.

Mims asked me for a reaction too, of course, and here's what I said, in part: "There has never been an operating system picked over with such care and determination to find fault. And Linux has come through utterly clean as a whistle."

Next, both Slashdot articles: Slashdot #1 - IBM Motion to Limit SCO Claims Granted [ http://yro.slashdot.org/article.pl?sid=06/06/29/0039226&tid=136 ] and Slashdot #2, "Judge Calls SCO on Lack of Evidence [ http://yro.slashdot.org/article.pl?sid=06/06/30/1352212 ]". The second one links to a headline you'll like on Computer Business Review, Matthew Aslett's "Judge calls SCO's lack of evidence against IBM 'Inexcusable [ http://www.cbronline.com/article_news.asp?guid=35907ABD-2BB7-4703-B9D9-0B594213DE37 ]':

SCO Group Inc has willfully failed to comply with the orders of the court hearing its breach of contact and copyright case against IBM Corp, according to the Magistrate Judge, who has declared the company's failure to detail its evidence against IBM 'inexcusable'.

The Lindon, Utah-based Unix vendor was taken to task for its legal tactics by Magistrate Judge Brooke Wells, who is handling the discovery portion of the case, as she granted most of an IBM motion to limit SCO's claims to those where is has provided specific evidence.

If you are a true believer in SCO's cause, here's one article [ http://news.portalit.net/fullnews_Open-Source-Victorious-In-Court_1747.html ] that holds out hope for your wilted quest, "Open Source Victorious in Court":

While some started to believe this must be the beginning of the end for SCO's case, others are still saying that such a ruling is only a setback and the trial (plus the controversy) will go on until the final verdict will be reached.

Lamlaw's [ http://www.lamlaw.com ] take:

Finally we get some resolution of these discovery issues.

It is important to note (and PJ at Groklaw does this), that the resolution here is not of the legal issues themselves on the merits but rather the exclusion of certain claims due to the failure of SCO to provide the necessary information as required by the court. Either way, a number of claims get tossed. And you must assume that the needed evidence just does not exist or at least SCO lawyers knew their evidence would not survive the light of the day, so they did not bother. This order is just the courts way of saying that the court will not bother either.

These events just give additional credence to the suggestion that SCO lawyers were all about creating a stink in the courtroom rather than having any chance at a legitimate case. That is the hallmark of a true nuisance case.

Steven J. Vaughan-Nichols on Linux-Watch called his article, SCO hits iceberg [ http://www.linux-watch.com/news/NS8958786128.html ]:

On June 28, Magistrate Judge Brooke Wells ruled largely in favor of IBM's "Motion to Limit The SCO Group Inc.'s Claims Relating to Allegedly Misused Material." This means that the vast majority of SCO's claims against IBM for misusing Unix code in Linux have been thrown out.

Since SCO first began claiming that IBM had placed its Unix intellectual property into Linux, opponents to its arguments, such as Linus Torvalds, have demanded that SCO show precise proof for its claims. In its motion, IBM took a similar tack....

SCO may appeal this decision. "Our legal team is reviewing the judge's ruling and will determine our next steps in the near future," said Blake Stowell, SCO's communications director.

While there are other issues still to be decided in court, with over two-thirds of SCO's claims now thrown out, SCO's lawsuit has clearly collided with a Titanic-sized iceberg.

Scott M. Fulton III in TG Daily, "Majority of SCO's claims in UNIX infringement case against IBM dismissed [ http://www.tgdaily.com/2006/06/30/most_sco_claims_against_ibm_dismissed/ ]:

In a decision handed down late Wednesday that could leave absolutely no doubt in anyone's mind as to US Magistrate Judge Brooke Wells' opinion regarding the validity or substance of SCO's claims in the three-year-old UNIX infringement case against IBM, the judge granted IBM's motion to limit SCO's claims going forward to a much smaller list for which SCO has actually offered evidence.

The basis of IBM's motion had been that t SCO, in claiming that IBM stole elements of Linux source code from UNIX - many of the rights to which SCO inherited, in several steps, from AT&T - failed to produce source code that would demonstrate that IBM had indeed stolen not just methodologies, but intellectual property. Judge Wells resoundingly agreed, in absolutely scathing language...

PC Pro, "Judge kills off SCO claims [ http://www.pcpro.co.uk/news/89577/judge-kills-off-sco-claims.html&cid=1107644780 ]":

SCO has had the lion's share of the examples it put forward as evidence of the 'misappropriation' by IBM ripped from its case.

Judge Brooke Wells issued an order granting an IBM motion to dismiss SCO's claims due to lack of specificity: from a list of nearly 200 claims contested by IBM, just 10 remain - essentially removing two-thirds of SCO's contention.

Aside from lack of specificity as to what exactly the code in question is, the straw that broke the Judge's patience is that SCO required far greater levels of specificity from IBM when requesting materials for evidence throughout the discovery period: a level of exactitude to which it was unable, or unwilling, to rise itself

And Ms. DiDio? Did no one call her to comment? After all, she told the world that she had seen the code [ http://www.theage.com.au/articles/2003/06/13/1055220751243.html ], and it was persuasive to her. Did SCO have a more faithful supporter? Grace Leong of the Daily Herald in Utah did ask her to comment, and you can read her pearls of wisdom in the article, "SCO dealt legal setback [ http://www.heraldextra.com/content/view/184660/3/ ]":

Laura DiDio, a senior industry analyst of the Yankee Group who tracks SCO, says Wells's latest ruling isn't a surprise.

"I recall earlier rulings where the judge issued scathing comments to SCO. The onus is on SCO to show the smoking gun. The judge in this case is again asking SCO to 'put up or shut up,' " she said. "With each passing month that SCO doesn't come forward to exhibit evidence of its claims, it loses more and more credibility, and it doesn't help its case to sell Unix products."

Ah. She's not surprised. No? That surprises me, given her earlier pronouncements -- and they were legion -- that SCO had a case and Linux was in trouble. Here's just one small example, an article [ http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2914388,00.html ] she wrote about SCO registering copyrights (the ones Novell says belong to it, also currently in litigation and in arbitration), in which she wrote that the case would be tried first in the court of public opinion, and wasn't it ever:

Market Impact

The most tangible immediate result of SCO’s decision to register the copyrights will be to boost the perception among a large segment of the industry—although notably not among the Linux community—that SCO’s case is legitimate.

SCO’s move also puts more pressure on IBM to clearly articulate its position with respect to indemnifying its customers in the event SCO should prevail.

IBM continues to dispute and dismiss as “baseless” SCO’s claims that IBM misappropriated large portions of UNIX System V source code and embedded them into its Linux software offerings. IBM recently surpassed Red Hat as the largest provider of Linux server software. In a public statement, IBM spokeswoman Trink Guarino said, “SCO needs to openly show the Linux community any copyrighted UNIX code which they claim is in Linux.”

There are strong indications that the industry at large takes SCO’s claims seriously.

Wall Street sees it that way. SCO’s stock soared nearly 15 percent on the news. It jumped $2.82 and was trading at $14.77 early on July 24, its highest level since February 2001. Since SCO filed the suit in March 2003, the stock has quintupled.

Enterprises will note SCO’s filing with heightened interest. In March, SCO sent letters to 1,500 large accounts informing them of potential liability. Since then, about four dozen enterprises contacted SCO for further information and the steps they need to take to legally license their IBM Linux 2.4 and 2.5 software. Expect those numbers to increase with the copyright filing. In addition, SCO is now ready to release a licensing plan so corporations can determine the cost of getting legal....

Expect IBM, SCO, and the very vocal Linux community to work overtime promoting their respective points of view to influence the opinions of corporate customers, the media, and analysts. Such posturing is designed to make one or the other party blink first and possibly hammer out a settlement. However, a settlement is unlikely in the next several months.

That collection of misinformation and failed predictions was written in July 28, 2003. The Linux community has never wanted the parties to settle. We wanted SCO repudiated for raising false accusations, impugning the integrity of thousands of volunteers who worked very hard to give the world some very wonderful software that anyone in the world can use for free and in freedom. They code in public, and they would never deliberately grab someone else's code. First, they take pride in their work. Second, they know the whole world can see their work 24/7. It is a huge disincentive to theft.

The Linux community knew from the first that SCO would lose if there was any justice in the world, and it was right, as events have now demonstrated. It's really that simple. We knew it, because we know the code, the development process, the tech, Unix history, and we know Linus. I knew from day one that Linus would never steal anyone's code. Period. From our side, it was never a matter of bashing anyone or attacking SCO. It was a matter of steadily, patiently digging up evidence that we presented to the world, the result again of thousands of volunteers.

And SCO should be ashamed of itself, along with all its backers. Speaking of backers, DiDio got one thing right [ http://www.ecommercetimes.com/story/31252.html ] back in August of 2003:

Unix software maker SCO might not be making any friends in the open-source communit with its plan to sell licenses to corporate Linux users, which the company claims have infringed on its own source-code copyrights.

However, the small Lindon, Utah-based company might be earning silent cheers from others, namely Microsoft, who are eager to see Linux -- and the open-source movement -- stumble.

"There's a lot going on behind the scenes," Yankee Group senior analyst Laura DiDio told TechNewsWorld. "Not necessarily coming out to say they support SCO or coming to their defense, but I think there are a lot of behind-the-scenes machinations."

Indeedy-do. There is plenty of shame to go around, but Microsoft's role stands out. Here's my question: if you're a monopolist and you enable a FUD lawsuit, and then your server sales go up at the expense of the victim, your competitor in the marketplace, is that an antitrust violation? You think?

The SCO story has now even reached Fox News, via an article by AP's Paul Foy, "Judge Tosses Out Most of SCO's Anti-Linux Lawsuit Against IBM [ http://www.foxnews.com/story/0,2933,201765,00.html ]", which is also now on ABC News [ http://abcnews.go.com/Technology/wireStory?id=2140613 ] and on Yahoo! News [ http://biz.yahoo.com/ap/060630/linux_lawsuit.html?.v=2 ] and Mercury News [ http://www.mercurynews.com/mld/mercurynews/business/technology/14942105.htm ] and the Washington Post [ http://www.washingtonpost.com/wp-dyn/content/article/2006/06/30/AR2006063001158.html ] and Business Week [ http://www.businessweek.com/ap/tech/D8IIP82G8.htm?sub=apn_tech_down&chan=tc ]. Foy interviewed me also:

SCO doesn't have enough evidence "to shake a stick at," said Pamela Jones, creator and editor of Groklaw.net, a Web site devoted to open-source software legal issues. "Linux is booming, and everyone knows now that the code has been examined every which way, and it's clean as code can be."

Speaking of icebergs, this is probably the right time to rerun JD Frazer's (of UserFriendly [ http://www.userfriendly.org/ ] fame) prophetic cartoon, which he gave me as a gift:

04:42 PM EDT

Drawing Copyright 2005 Pamela Jones

Copyright 2006 http://www.groklaw.net/ - http://creativecommons.org/licenses/by-nc-nd/3.0/