Skip to comments.Reading the (SCO) Leaves
Posted on 12/07/2003 8:31:11 AM PST by E. Pluribus Unum
READING THE LEAVES,
~by Webster Knight, Esq.
Friday was a walk over victory for IBM. They didn't have to say anything. They didn't even have to be there. The Judge stated what she intended to do, gave SCO their fair hearing, then did what she said. IBM's Motions were granted, SCO's was not.
The Court has given SCO thirty days to comply with IBM's discovery demands in the way IBM wants it. That is a hard thirty days. Assuming that the reports we have received are accurate, the Court said if they needed more time for the hearing, that could be changed. They still only get thirty days to comply with the discovery. If they want more time, they are going to have to show substantial compliance and even get IBM to consent to an extension. Their time has come to show the evidence.
Groklaw's reporters were fast and accurate. Their impressions were certainly corroborated by the decision. IBM's presentation came through as masterful and concrete. Their point with the two bound volumes, one big and the other small, was easy to capture, hard to forget. It was not a question of substance over style. IBM had both; SCO neither. When the transcript is posted on Groklaw, I won't even feel the need to read it. [PJ: Web! We're paying a hundred dollars for that transcript. You have to read it. Kidding. I know what you mean.]
The leaves at the bottom of my cup spell out "Boies." Where was he? Why get a celebrity lawyer and not use him? Why would he allow himself, as the marquee lawyer, to be so behind the scenes? Is this what you get for the 10 million interim fee? I guess the client doesn't mind; they got 40 million from that deal. But why is he missing from action? Are they saving him for the real trial? With days like today, they will never get to the real trial.
The leaves have settled and shifted. They spell out ethical and reputational considerations. Is Boies now worried about the state of SCO evidence? Are they going to pull out all of their aces on the thirtieth day? Why stonewall and play games with the Court on an issue that wasn't even close, as the day shows? Is he distancing himself from their evidence and this case? Does he lack confidence that SCO people can prove their claims against IBM and Linus, who know who wrote every line of the whole kernel? Does he consult Groklaw and realize SCO doesn't know the provenance of its own code? Doesn't he want to stake his reputaion on them? Is his own standard of proof preventing him from presenting half-baked claims of code and methods that will wither before open scrutiny as have all disclosed claims heretofore? Is Boies saying this should be settled because this is as far as I can go? Does he worry about his name and ethical standards?
I'm sorry, dear readers, these must be SCO leaves because they give me no direct answers.
SCO must now turn their reluctant eyes to The Code. Everything they now disclose, if they do, has likely been copyrighted and distributed under the General Public License --distributed BY THEM. They will then have to try to convince the Court to disregard their nine years of distributing Linux under the GPL, pleading incompetence, I imagine. They will also need to convince the Court that US copyright law must be reinterpreted to invalidate the GPL. If they try to do these two things, they will be laughed out of court. If they can't do these two things, they will be laughed out of court, not that an IBM Motion for Summary Judgment is anything to laugh at. I am not sure IBM even needs discovery to file it, since the GPL seems to apply to every conceivable line of code in question.
My leaves stop at the GPL. Speculating beyond the GPL takes one into contracts, methods and secrets, numas, jfs, and "ixes" like UNIX, AIX, DENIX, XENIX, and I'll leave that part to others.
Like the Courts likely will, I will stop with the GPL.
I am sure Bill Gates thought he would get more for his SCO Linux license investment than this.
Worse still, this entire fiasco has served to legitimatize Linux.
There is no doubt about the validity of the GPL.
The thing that worries me is the judge-shopping that is sure to occur before Microsoft's next move.
Just how sour are those grapes?
It has been known from the beginning that one of the hurdles SCO must jump over, in order to win this case, is the fact that they themselves distributed all this code for years. McBride had one of his usual flip answers for how they were going to get over that hurdle, but this guy is suggesting that it won't be that easy.
The court will see a professional software development company claiming that it did not know what was in its own products when it shipped them. That's going to sound more like negligence on their part than anything else.
Then they have the problem that contemporaneous statements by their own executives, and their marketing materials, show that they were bragging about all this stuff being in linux and using it to promote their own business. For them to say now that they didn't know it was there will look like perjury.
Apparently this guy doesn't think it's going to go farther than that. SCO's case will fall at the first hurdle. The court won't even bother to look to see what all this code was, because no matter what it was, SCO agreed to its release when it distributed Caldera Open Linux.
Well see soon enough, I guess. I wonder if David Boies has to remain on board for the second half of the voyage, in which IBM's countersuit keeps coming even though SCO's original lawsuit collapsed.
The case, alone, has neither legitimized or undermined the legitimacy of Linux since most people simply seem to be ignoring it. The outcome of the case is what will legitmize or undermine the legitimacy of Linux. I'm curious. If this case goes badly for Linux, how do you think it undermines the legitimacy of Linux?
Time will tell, won't it Bozo?
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