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Re: SCO is Out of the Picture

  • Subject: Re: SCO is Out of the Picture
  • From: "Rex Ballard" <rex.ballard@xxxxxxxxx>
  • Date: 1 Dec 2006 13:35:07 -0800
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amicus_curious wrote:
> "Roy Schestowitz" <newsgroups@xxxxxxxxxxxxxxx> wrote in message
> news:1363532.ooiXr2j3QL@xxxxxxxxxxxxxxxxxx
> > SCO no longer matters
> >
> > ,----[ Quote ]
> > | You may have noticed that I don't cover news about the never-ending
> > | SCO vs. IBM, Linux, Novell, et al much anymore. There's a reason for
> > | that: SCO doesn't matter anymore.
> > http://www.linux-watch.com/news/NS9812502019.html
> I don't think that the author is correctly framing the issues in the SCO vs.
> IBM case.  The fundamental SCO claim, which has survived the summary
> judgment phase, is that IBM violated their Unix System V license by
> disclosing information that they were required to maintain as confidential.

Keep in mind that the Judge gave IBM everything it requested.  Of the
128 allegations IBM requested be dropped, all of them were dismissed by
the judge.

The remaining allegations could be remaining for one of two reasons.
Either - IBM knows that this may be a legitimate point
OR - IBM knows that it is fully capable of defending itself against
these allegations.

Normally, if the first case is there, the lawyers will still try to get
those allegations dismissed.

In effect, IBM has asked the judge to leave the trap door open.  This
allows IBM to file for discovery motions and create links to deeper
pockets, then if they can successfully prove that the charge is not
only invalid, but are actually fraudulent, IBM will have access to the
deeper pockets as well as the primary plaintiff.

Based on the published disclosures it's beginning to look like
Microsoft was simply using SCO/Caldera which had been nearly driven
into bankruptcy by Daryl McBride and proxy fights, to broker the
funding through puppet holding funds which are immune from SEC filing
requirements, to try and generate a FUD campaign based on a lawsuit
that McBride knew he could not win.

Pulling up all of these disclosures, and forcing these issues out into
the public not only diffuses the negative publicity, but it opens the
doors to criminal prosecution under a number of different securities
and fraud laws, including securities fraud violations made by Microsoft

It's quite likely that IBM will move for recovery of nearly $300
million in legal expenses, not from SCO which has a total net worth of
about (1/2 that?), instead, IBM could go directly after Microsoft, and
hit them for damages closer to $1 billion, or just turn their records
over to state and federal prosecutors.  They might even do both.

> The issue with the destruction of evidence is that a number of IBM
> developers who were contributing to Linux development were simultaneously in
> possession of the AIX code, which is an uncontested derivative work of
> System V and covered by the non-disclosure provisions of the IBM license,

This would require that the SCO prove "Open Book" violations of SCO
code.  It would also require that SCO prove that it was code that was
owned and licensed exclusively under the SCO license, not OSS licensed
code such as BSD, GNU, or other OSS code that was being violated.  Even
more important, IBM may be able to prove that the code "shared" with
the Linux developers was OWNED BY IBM!  Keep in mind that IBM did
provide code to the SCO project to create a version of 64 bit UNIX for
the "merced" chip.  Linux had a fully functional version of Linux for
the merced chip long before IBM got directly involved.

It appears that the code IBM may have given to Linux dates back as far
back as the 1960s, and has been used in DOS/VS, VM/CMS, MVS, and CICS
at least since the mid 1970s.  If SCO is claiming exclusive ownership
of code owned by IBM, and contributed to the SCO project, then SCO
could be facing some really nasty judgements.  IBM could countersue,
claiming that SCO was, in effect, fraudulently claiming ownership of
IBM generated code.  They could also file for consequential damages,
legal fees, and if IBM can prove that Microsoft was involved, could
request judgements against Microsoft as a co-conspirator.

What would happen if IBM were to track the impact of the SCO lawsuit on
Linux growth, and were to get the Judge to impose quotas on Linux vs
Microsoft mix in the desktop market based on Microsoft's funding of the
SCO lawsuit, and the impact of that lawsuit on Linux desktop sales.
Ironically, IBM has left the Desktop and Laptop business, in part
fueled by Microsoft's continued empedements to Linux and continued
retaliatory actions against OEMs who try to sell Linux preinstalled in
workstations and laptops.

> while developing code for Linux.

>  This precludes so-called "clean-room"
> defense on the part of IBM.  The removal of the source from the developer
> machines thus constitutes a destruction of evidence of IBM's behaviour.

SCO is maintaining that IBM should be obligated to have retained the
hard drives of every employee in the Kingston New York plant, which was
closed in 1993.  That was almost 13 years ago.  They are claiming that
people working in on AIX for the Mainframe (which was implemented in
1992-1993) shared code with Linux developers?

Not quite sure how that could have happened, since IBM didn't formally
support Linux until 1998.  Let's just take a look at this expectation
one more time.  SCO feels that IBM was obligated to save the personal
drives of all employees from 1992 to 2006.  Let's assume that the
averaage annual drive storage requirement was only 2 gigabytes per
employee.  With nearly 500,000 employees, this would be over 1 petabyte
of storage.

IBM does keep records of critical corporate information, including
deliverables given to clients, patent applications, software published
under copyright license to other corporations, certificates of
originality from developers, employees, and contractors who submit
complete works.

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