SCO's suit not all that simple

Salt Lake Tribune ^ | 02-07-2004 | Bob Mims

[Nick Danger]

Seriously, Nick, if you think that buying a license constitutes libel,

No one made such a claim. You are making it. If you would like to argue this with yourself, please do not address me with it. It is possible to reply to your own notes, and you should do that instead.

Given the curious nature of the contracts and letters between SCO and its investment banker in which this "License" is treated as if it were a debt or equity placement, it is probably possible for someone pursuing such a case to subpoena Morgans Keegan's records of its conversations with Microsoft. Why Microsoft would be buying a "software license" from an investment banking house is not clear. It is at minumum odd. Depending on the particulars of the arrngements entered into, Microsoft's characterization of this as a "license" might in fact be fraudulent.

Then there is the issue of whether the Microsoft Corporation, or Gates personally, is the "client" on whose behalf the Royal Bank of Canada made an equity investment in the SCO Group. Or whether BayStar was managing investment funds on behalf of Microsoft or Gates when it purchased an equity position in SCO.

We can already demonstrate that the public statements of SCO's officers do not reflect what SCO knew to be true. And many of these statements do constitute trade libel. Both IBM and Red Hat have already filed suit against SCO on those grounds. If the SCO lawuit against IBM is dismissed as having been "frivolous" or "meritless," then it too becomes evidence of trade libel.

So then we come down to whether or not this activity was being funded surreptitiously by the Microsoft Corporation. That's probably a jury decision, and it depends on whether evidence can be developed that the "license" purchase, the BayStar investment, and/or the RBC investment, were essentially vehicles through which Microsoft shoveled operating funds into an otherwise-bankrupt SCO while they pursued these various libelous activities.

I would agree that several things have to line up there before Microsoft gets whacked with The Big Stick, but none of that depends on a claim that buying a license constitutes libel. That's just you spewing gas instead of making sense.

[Nick Danger]

I wouldn't bet unless I knew the outcome.

You shouldn't tell people that. The last guy who claimed to know the future in advance was crucified. That was 2,000 years ago, and people still remember it.

[Nick Danger]

You're not telling us the whole story about your relationship with IBM, Nick.

It's a very short story. I have never worked for IBM. I have never been a contractor to IBM. I own none of their stock. I don't know anyone who works there. I do own several of their keyboards, which I bought on eBay. These are the "clickety-clack" keyboards that no one makes anymore. I bought a lifetime supply.

I do not like what SCO is doing. I consider it the opening salvo that represents the arrival of the tobacco and asbestos lawyers in an industry that I have worked in for a long time. I do not like shyster lawyers; I believe them to be a plague.

More recently, and partly because of yours and the Migraine Mallard's involvement, I have come to believe that SCO's activities are being funded under the table, if not directed, by the Microsoft Corporation... which I also don't like because I consider the company to be a form of corporate thug. I do not expect their funding involvement to be easy to prove. As a fundamentally criminal enterprise, Microsoft is reasonably skilled in the art of leaving no suspects or witnesses.

I do not give two hoots to Hell about Linus Torvalds, Richard Stallman, or Eric Raymond. This nonsense that you and the Warbling Woodpecker keep coming up with -- that the world is divided into "camps" made up of Microsoft's wives and a group called "you guys," is I think an artifact of the personality of the Microsoft Corporation, which seems to imagine that business is a kind of fight.

I particularly despise thieving liars, and I consider Darl McBride to be one of the worst I've ever seen. There are a lot of sociopaths in business, and I have never liked any of them. Like shyster lawyers, they are a plague.

I also find this to be a necessary antidote to what else goes on at FR. If I seem to be a fan of IBM, it is because they are doing what I wish Republicans would do more of. Attacked by twerpy little lying thugs, IBM has chosen to stand its ground, and to proceed to patiently and methodically rip the thugs to shreds, limb by limb. I find this satisfying in a world where everything else seems to be run by Orrin Hatch.

[cc2k]

Bush2000 wrote:

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You misunderstood the agreement. SCO never questioned that IBM retained ownership of its code;

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Ownership, without any specified encumbrances, includes the right to use the code in any way that IBM sees fit. If IBM owns their code outright, then IBM is free to incorporate that code into other products. IBM is free to sell that code to third parties for use in their products. IBM is free to donate that code to an open source project.

By what means do you think The SCO Group can claim any encumbrance on code written by IBM? If you allege that some kind of contract grants such an encumbrance, how is that contract valid? and what mutual consideration did IBM receive from The SCO Group (or its predecessor) in exchange for allowing IBM property to be so encumbered?

Bush2000 wrote:

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HOWEVER, once IBM contributed that code to AIX, the code became a derivative of the System V

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Again, if IBM wrote it independently, and retains all ownership rights to this code, how is it "derived from" Unix System V? (note: "derivative of System V" means exactly the same as "derived from System V.")

Bush2000 wrote:

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and consequently could only be used for "internal business purposes".

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Clearly you haven't read all of the agreements. But then, based on your posting history, it appears you only read The SCO Group press releases and Microsoft marketing bulletins.

Are you saying that IBM didn't even have the right to license this enhancement code (JFS for example) to customers in their AIX products? And you still haven't explained, under this twisted theory of viral ownership, you still haven't explained why versions of OS/2 with JFS aren't also "derived" from UNIX after IBM "contributed" their JFS technology to Caldera? or to The SCO Group, or to whoever held these alleged (contractual) rights at the time IBM made the alleged "contribution".

Are you saying that every version of AIX that IBM ever sold a license to is illegal? Oh, and every version of OS/2 with JFS that IBM ever sold a license to is also illegal? Clearly you haven't read all of the agreements. Also, that wasn't AT&T's understanding of all of the agreements for the entire time that the contract was between AT&T and IBM. It wasn't Novell's understanding for the period that the contract was between Novell and IBM, and it wasn't the Santa Cruz Operations's understanding for the period that the contract was between the Santa Cruz Operation and IBM. And there's no evidence that Caldera (now The SCO Group) ever notified IBM of any change in the way the contract would be interpreted, or that IBM ever agreed to any such changes.

[steve-b]

Fine. Provide a link to it.

I see that we can add "Burden of Proof" to "Rule of Law" under "List of Concepts On Which Bush2000 Is Unclear".

[steve-b]

I do not like what SCO is doing. I consider it the opening salvo that represents the arrival of the tobacco and asbestos lawyers in an industry that I have worked in for a long time.

And that, really, is why the judicial system really should put Darl in a nice 8 x 10 with a large lonely fellow named Bruno -- inverting Voltaire, it would serve to discourage the others.

[steve-b]

I merely had the audacity to question why IBM is fighting disclosure.

That's how it works under the Rule of Law -- some bozo takes it into his head to launch a fishing expedition into your private records, you point out to the court that he has shown no legitimate cause to demand your records, and the judge (assuming that he is a judge rather than a robed legislator) tells the bozo to make his case or get lost.

[steve-b]

Now it's possible that the SEC will blow it off. Such things happen. But if any ambitious young prosecutor wants an easy feather in his cap, the case is slam-dunk.

For that matter, if the Administration wants to demonstrate that it is, too, tough on corporate criminals, the slam-dunk remains hanging from a low branch (to mix metaphors a bit).

[Golden Eagle]

If you would like to argue this with yourself...

LMAO, you're the one arguing with yourself. And your claims are absurd, amazingly delusional to anyone who isn't consumed with hate for Microsoft. If you want to love something, then love something. But people filled with hate are despicable.

[Bush2000]

I would argue that it is not possible for anyone to have been "full of crap" for having made the second statement. It is explicitly a "possibility" which depends on a snitch coming forward.

Sure, Nick, and monkeys could fly out of your butt. But they probably won't. The point stands. Nobody has even remotely accused M$ of libel. Your prediction is so ridiculous that I'm surprised you don't have the good sense not to shout it.

It is blatant. And it's on tape. And it is totally contradicted by SCO's subsequent SEC filings, which show that both men knew when they made the statements that they were lying.

Like I said, Nick. June 2005. If I'm wrong, I'll admit that I was full of crap. If you were wrong, you eat crow. Deal?

[Bush2000]

Please... spare us quotes from Darl McBride. That guy is a sociopathic liar.

I don't know who to believe: the sociopathic liar who claims he's a sociopathic liar -- or McBride. No, strike that. I'll have to go with McBride. Nobody has proven him to be a liar. You, on the other hand...

Darl McBride is CEO of a company that was never a party to Project Monterey.

Rrrrright, Nicky. Darl McBride only purchased the burnt-out crater left in its wake and absorbed its employees.

This is his SMP, JFS, NUMA crap. Those were not SCO contributions to Monterey. Those were IBM contributions.

And according to the contract it signed with AT&T, IBM had no right to move those contributions to Linux.

What's worse, Caldera had employees working on porting this stuff to linux. He seems to want to forget that, too.

Lemme get this straight: You're alleging that SCO was porting JFS, SMP, NUMA to Linux? LMFAO!

And he also wants to forget that Caldera subsequently distributed all this stuff themselves under the GPL, with their name on it.

The fact that Caldera didn't know about IBM's violation of contract at the time doesn't release IBM from responsibility, Nicky. Nice try.

[Bush2000]

Ownership, without any specified encumbrances, includes the right to use the code in any way that IBM sees fit. If IBM owns their code outright, then IBM is free to incorporate that code into other products. IBM is free to sell that code to third parties for use in their products. IBM is free to donate that code to an open source project.

No, wrong. IBM was contractually bound. It gave up its rights to sell and/or distribute the code when it made it part of AIX. Just about the only thing it could do was prevent other parties from infringing on the code.

[Liberal Classic]

And according to the contract it signed with AT&T, IBM had no right to move those contributions to Linux.

According to McBride, that is.

[Bush2000]

Again, if IBM wrote it independently, and retains all ownership rights to this code, how is it "derived from" Unix System V? (note: "derivative of System V" means exactly the same as "derived from System V.")

Adding the code to AIX made it a part of the "SOFTWARE PRODUCT (System V)". Read the contract. It's in black-and-white. I'm getting tired of pointing this out to you guys.

Are you saying that IBM didn't even have the right to license this enhancement code (JFS for example) to customers in their AIX products?

No, I'm not saying that. IBM was permitted to distribute AIX to customers (including the JFS code). But, once it made that source code part of AIX, IBM could only distribute *the source code* "for internal business purposes".

And you still haven't explained, under this twisted theory of viral ownership, you still haven't explained why versions of OS/2 with JFS aren't also "derived" from UNIX after IBM "contributed" their JFS technology to Caldera? or to The SCO Group, or to whoever held these alleged (contractual) rights at the time IBM made the alleged "contribution".

You guys have a lot of balls to complain about "viral ownership" now. It's not that complicated. IBM reportedly added JFS first to OS/2. It took that code and added it to AIX. Once it did so, it was precluded from distributing the code to Linux. Yeah, it could argue that the code was taken from OS/2 and added to Linux -- but, realistically, when you look at the JFS code, you're going to find that it's pretty much line-by-line the same as the code added to AIX; therefore, it's impossible to distinguish whether it came from AIX or OS/2. Since IBM ported the code to AIX, it's a safe bet that the code came from AIX, not OS/2. Hence, IBM had no right to contribute it to Linux. If IBM tries to argue the OS/2 => Linux route, the court will probably conclude that it's only trying to undertake a clever sleight-of-hand.

[Bush2000]

I see that we can add "Burden of Proof" to "Rule of Law" under "List of Concepts On Which Bush2000 Is Unclear".

Since when did your side -- fresh from DDos and spam attacks -- care about the "rule of law"?!? You guys only care about the "rule of law" when you think you're winning. Otherwise, the law is a roll of toilet paper.

[Bush2000]

That's how it works under the Rule of Law -- some bozo takes it into his head to launch a fishing expedition into your private records,

IBM claims the "private records" are actually public information. If so, it's not a fishing expedition.

[Bush2000]

No one made such a claim. You are making it.

The astute reader probably remembers your original statement. I'll reference it here:

"This thing is all over but the securities fraud indictments. And possibly, depending on whether anybody snitches, the $40 billion class action trade libel suit against Microsoft for funding this barrage of lying FUD."

Let's reconstruct this. Microsoft pays SCO a license fee. Microsoft has not made other payments to SCO. Nicky-Boy thinks that the Microsoft license payment constitutes libel. Everyone: Laugh now. Nick: Tumble for us, clown.

[Liberal Classic]

I would be interesting if correspondence between SCO and Microsoft is subpoenad. If there is any evidence of collusion or unfair trade practices suggested in talks between SCO and Microsoft that's a whole new ball of wax. It might prompt the Justice Department to re-examine the settlement.

[Cboldt]

Yeah, it could argue that the code was taken from OS/2 and added to Linux -- but, realistically, when you look at the JFS code, you're going to find that it's pretty much line-by-line the same as the code added to AIX; therefore, it's impossible to distinguish whether it came from AIX or OS/2. Since IBM ported the code to AIX, it's a safe bet that the code came from AIX, not OS/2. Hence, IBM had no right to contribute it to Linux. If IBM tries to argue the OS/2 => Linux route, the court will probably conclude that it's only trying to undertake a clever sleight-of-hand.

Am I following your logic properly? If IBM took its own code first to OS/2, and that code later was found in Linux, that would not violate a contract, but if IBM took its own code first to AIX, later finding the code in Linux would be a violation of contract?

[Bush2000]

It would be interesting if correspondence between SCO and Microsoft is subpoenad. If there is any evidence of collusion or unfair trade practices suggested in talks between SCO and Microsoft that's a whole new ball of wax. It might prompt the Justice Department to re-examine the settlement.

Yeah, but it's probably just a wet dream. Remember when Oracle tried dumpster-diving Microsoft. Didn't yield anything. I doubt that a subpoena would produce anything, either. Those guys know they're under a microscope.