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Leon Brooks Powerfully Answers SCO's O'Shaughnessy
Friday, August 27 2004 @ 09:57 AM EDT

You don't want to miss this: Leon Brooks, vice president of the Perth (AU) Linux User Group, has written a wonderful rebuttal to SCO's Kieran O'Shaughnessy's remarks about SCO's case, IBM and the nonexistence of Linux. Brooks didn't find it funny one bit.

Here's a taste:

"The article also states: 'Early this year, O'Shaughnessy warned that SCO had prepared a hit list and would approach Australian Linux users to ensure they had an IP licence.'

"This is illegal, and since SCO-ANZ hasn't followed up on it, I guess Kieran knows that. So why is he raising that empty threat again? Every time he does so he opens himself to a fresh count of fraud. . . .

"I don't need to defend IBM, they have their own lawyers and PR section for that, but Kieran and his company are essentially accusing all of the contributors to and deployers of Linux of stealing. Since those claims are baseless, continuing to make them amounts to slander and in some cases fraud against the Linux community, including me.

"The only reason Kieran hasn't had a court order tossed at his feet is because as an individual developer, I can't afford to do that and defend myself against the inevitable legal consequences."

I feel I should just mention that what isn't possible as an individual is sometimes very doable as a class. Not that I'd encourage anybody getting in the way of IBM's steamroller at the moment in the US.

There is also an odd report on the SCO-BayStar agreement to go their separate ways:

"Relations between SCO and BayStar had soured by April 2004, however, when the investment firm stated that it wanted a refund from SCO or a change of management to better focus the company on its intellectual property claims, rather than growing its Unix operating system business.

"SCO refused to change its ways, and looked set for a major battle with the investment firm after Royal Bank of Canada washed its hands of SCO in May, converting 10,000 Series A-1 shares into common stock and selling the remaining 20,000 to BayStar. However, instead of launching a battle for control of SCO, BayStar agreed in June to sever its ties with the Unix vendor in return for cash and stock."

June? If it were June, why didn't they tell us until August? Here are the dates the way I recall them. They did argue in public in April about the direction of the company. Then, the purchase agreement was signed in May. The press release went out on June 1. In July, when SCO said the deal was done, Baystar said on the 23rd, they had not agreed and would seek a declaratory judgment against SCO.

More documents on PACER. Everybody gets to talk long. First, #257, IBM's [sealed] Reply to response to [152] cross motion for partial summary judgment on claim for declaratory judgment of non-infringement [Entry date 08/24/04]. This one we won't get to read. I gather it speaks of somebody's most holy proprietary code.

Then an Order granting IBM's Ex Parte Motion for Leave to File an Overlength Memorandum and another Order granting IBM's Ex Parte Motion for Leave to File an Overlength Reply Memorandum

And then SCO gets to be wordy too. Here's an Order granting SCO's Ex Parte Motion for Leave to File an Overlength Memorandum.

But IBM has filed to block SCO from filing a supplemental memorandum:

#261 - Memorandum by Intl Bus Mach Inc in opposition to [245-1] ex parte motion for leave to file a supplemental memo re: discovery (blk) [Entry date 08/26/04]

SCO's ex parte motion #245 is another sealed document:

"245 - SCO's [sealed] Ex parte motion by SCO Grp for leave to file a supplemental memo re: discovery [sealed] [Entry date 08/22/04] (also, Declaration of Jeremy O. Evans, and Declaration of Barbara L. Howe)"

I gather IBM has had it with the discovery nonsense. A reader noticed that this cartoon today seems to get the whole IP silliness.


  


Leon Brooks Powerfully Answers SCO's O'Shaughnessy | 281 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Leon Brooks Powerfully Answers SCO's O'Shaughnessy
Authored by: The Mad Hatter r on Friday, August 27 2004 @ 10:41 AM EDT


I think that IBM has well and truly declared war on SCO. The results should be
entertaining.


---
Wayne

telnet hatter.twgs.org

[ Reply to This | # ]

Leon Brooks Powerfully Answers SCO's O'Shaughnessy
Authored by: Anonymous on Friday, August 27 2004 @ 10:42 AM EDT
Maybe kiernen's playing the wookie for now?

[ Reply to This | # ]

Corrections here please
Authored by: Anonymous on Friday, August 27 2004 @ 10:43 AM EDT
Please reply to this message with information regarding errors or typos in the story.

[ Reply to This | # ]

New Links and Off-Topic [OT] Discussions Here Please
Authored by: Anonymous on Friday, August 27 2004 @ 10:45 AM EDT
Please reply to this message with new links of interest to Groklaw readers. This makes it easy to find them.

If posting a link to an article on the World Wide Web, please try to use the HTML Formatted mode and make it easy to click on a link and follow it directly to the article of interest by using an Anchor tag.
  <a href="http://example.url/">visible text</a>

This is also the place to start discussions unrelated to the topic(s) of the original story.

Please choose new and appropriate titles for unrelated topics.

[ Reply to This | # ]

Trolls, Turfers and Such
Authored by: Anonymous on Friday, August 27 2004 @ 10:45 AM EDT
Remember, trolls have feelings too.
-Bubba the Barbarian

[ Reply to This | # ]

IBM objections to supplemental memo
Authored by: AllParadox on Friday, August 27 2004 @ 10:51 AM EDT
At what point does TSG decide that they have "submitted" something?

They are supposed to put their best shot into it the first time.

Errors and misstatements should be corrected, but nobody does that with
additional affidavits.

Besides, having received the first version, IBM has now committed considerable
resources to a reply.

Is there anyone in charge on the TSG side that has ever been in a major lawsuit
before? How about a small Federal case?

---
All is paradox: I no longer practice law, so this is just another layman's
opinion. For a Real Legal Opinion, buy one from a licensed Attorney

[ Reply to This | # ]

Demented Joke Threads Go HERE
Authored by: Weeble on Friday, August 27 2004 @ 10:52 AM EDT
All work and no play make geeks dull boys (and girls).

---
MS Windows doesn't HAVE security holes--it IS a security hole.

[ Reply to This | # ]

Leon Brooks Powerfully Answers SCO's O'Shaughnessy
Authored by: Anonymous on Friday, August 27 2004 @ 10:57 AM EDT
2nd link points to same article about Leon Brooks. :-(

[ Reply to This | # ]

Sealed?
Authored by: overshoot on Friday, August 27 2004 @ 11:17 AM EDT
245 - SCO's [sealed] Ex parte motion by SCO Grp for leave to file a supplemental memo re: discovery [sealed] [Entry date 08/22/04] (also, Declaration of Jeremy O. Evans, and Declaration of Barbara L. Howe)

Sealed?

Since when is there a rational reason to seal a motion for leave to file a memorandum? Pity we can't see these to tell if SCOX is salting them with extraneous "stuff" just to justify sealing them.

Let's take a moment to appreciate IBM's submission of redacted copies of their sealed filings so that we can at least "hear" half of the "conversation."

[ Reply to This | # ]

Enough of this, let's sue them!
Authored by: Anonymous on Friday, August 27 2004 @ 11:33 AM EDT
PJ wrote "I feel I should just mention that what isn't
possible as an individual is sometimes very doable as a class."

Yes!! and I've had enough...

I say, let's sue'em!. Let's pull our financial resources
together and do something. If the Australians want to go
after SCO ANZ, I'd like to finance their legal team. Where
do I send the check? What about in the U.S?

Some will say it's a waste of time cause SCO is toast. But
the real goal is to show that the community has teeth and
can and will bite back when attacked. Think of the future...

[ Reply to This | # ]

Australia - the link?
Authored by: Nick_UK on Friday, August 27 2004 @ 11:46 AM EDT
Can anybody explain why SCO seem to have a lot of interest
in Oz re licences etc.? Is there something in the Oz
statute law they think they can hook into down there?

Nick

[ Reply to This | # ]

GUESS: Ms Barbara Howe did SCO's UNIX/Linux comparison
Authored by: Anonymous on Friday, August 27 2004 @ 11:55 AM EDT
The following is all GUESS WORK as to SCO-245 and Barbara Howe. I could be completely wrong. It is my OPINION as to what is likely. I do not know it to be true...


FWIW here is what I believe and opine is plausible...


THREE STARTING POINTS

(1) Barbara Howe left Caldera (SCO) in 2002. See her resume.

(2) IBM point out in their reply in support of PSJ on CC10 (non infringement of copyrights with respect to Linux):

Third, SCO's related claim that it "has not been given a reasonable opportunity to complete any of the kinds of comparisons necessary to uncover facts relevant to SCO's opposition to IBM's motion for summary judgment" (Harrop Decl para67) and that it could take SCO "25,000 man-years" (Sontag Decl para14) to complete its analysis is also contradicted by its public statements and internal documents concerning the analyses SCO has already performed. (etc)


i.e. there are internal documents about the analyses that SCO alreadyu performed.

(3) Of course, if SCO has already compared UNIX and Linux, and there are SCO internal documents confirming it, and SCO did it without access to AIX and Dynix and interim versions...

Then SCO's discovery requests for all of AIX and Dynix and interim versions for the last 20 years... rings rather hollow.


NOW IF YOU WERE SCO...

Perhaps, you'd want to say, it wasn't that kind of analysis...

Perhaps, you'd want to say, it was only a partial analysis because...

etc...

So hence, you would need an affidavit from whoever at SCO, is mentioned in those "internal documents" about comparing Linux and UNIX.

Well, that person definitely isn't like to be Jeremy O. Evans. He's a lawyer, not a techie. He doesn't work for SCO. etc.

So it must be Barbara Howe


CONCLUSION

Barbara Howe is the person at SCO who did the analysis of comparing UNIX and Linux.


Quatermass
IANAL IMHO etc

Disclaimer Again: The entire content of this post is OPINION and GUESSES: as to what IBM-245 may POSSIBLY contain, and as to what Ms Howe's involvement POSSIBLY could be.

[ Reply to This | # ]

Barbara Howe Homepage not in Wayback
Authored by: Fong on Friday, August 27 2004 @ 01:20 PM EDT
Funny enough Barbara Howe's oldish looking homepage has no
record in the wayback machine and she left fewer
tracks in the www as you might expect.

just a thought.

[ Reply to This | # ]

Huh?! SCO became the good guy?
Authored by: IMANAL on Friday, August 27 2004 @ 02:00 PM EDT
"Relations between SCO and BayStar had soured by April 2004, however, when
the investment firm stated that it wanted a refund from SCO or a change of
management to better focus the company on its intellectual property claims,
rather than growing its Unix operating system business."

Am I the only one who reads into that quote that SCO wanted to continue its Unix
business and that Baystar wanted them to litigate? Is this really the original
text or did I misunderstand it completely?

[ Reply to This | # ]

Leon Brooks Powerfully Answers SCO's O'Shaughnessy
Authored by: jim Reiter on Friday, August 27 2004 @ 02:09 PM EDT
That's why I call it McBS. These people, Caldera/TSG, cannot even prove that
they, Caldera/TSG purchased whatever they brought from Santa Cruz Operations,
Inc. Sounds like a RICO case to me.

[ Reply to This | # ]

Renewed filing: SCO vs. NOTHING
Authored by: tglx on Friday, August 27 2004 @ 05:16 PM EDT
The renewed SCO filing states:

IBM copied a huge amount of SCO Unix into NOTHING and published NOTHING.

Side to side comparisons of SCO Unix and NOTHING revealed 100% identicalness.

The result is NOTHING.

SCO pleads before the court to dismiss the whole SCO vs. IBM case immidiately.

SCO asks for some understanding of the complicated investigation which was
predicted to last 25000 man years to discover the only relevant fact: NOTHING.
Thank god, the well known and respected expert Kieran O'Shaughnessy (SCO
Australia) discovered this important point before more valuable time of the
court and IBM was wasted for NOTHING.

SCO pleads the court to sentence SCO to NOTHING, so SCO can keep their business
of NOTHING up which feeds thousands of innocent employes with NOTHING.

__________________________________________________

I still don't understand why they make so much noise about NOTHING

tglx

[ Reply to This | # ]

Why the dates seemed to have rolled back...
Authored by: jteich on Friday, August 27 2004 @ 05:36 PM EDT
June? If it were June, why didn't they tell us until August? Here are the dates the way I recall them. They did argue in public in April about the direction of the company. Then, the purchase agreement was signed in May. The press release went out on June 1. In July, when SCO said the deal was done, Baystar said on the 23rd, they had not agreed and would seek a declaratory judgment against SCO.
I suppose that Baystar wanted the date of the transaction to be as far in the past as possible, since that may give them more options to unload all the stock they are left with. If you recall, there were limits placed upon Baystar as to how fast they could sell the common stock.

[ Reply to This | # ]

OT: New entries on the docket, new PDFs
Authored by: Anonymous on Friday, August 27 2004 @ 07:50 PM EDT
http://www.utd.uscourts.gov/documents/ibm_hist.html

261 to 265 are available as PDFs

I think you will particularly enjoy 264


Quatermass
IANAL IMHO etc

261-1
Filed: 08/25/04
Entered: 08/26/04
Memorandum in opposition
mem opp
-/-/- - -

blk

1529898
Docket Text: Memorandum by Intl Bus Mach Inc in opposition to [245-1]
ex parte motion for leave to file a supplemental memo re:
discovery
262-2
Filed: 08/27/04
Entered: 08/27/04
Notice of hearing
ntc hrg
-/-/- - -

blk

1530306
Docket Text: Notice of Hearing filed : Motion hearing set for 2:30
12/9/04 for [233-1] motion for partial summary judgment on its
counterclaim for copyright infringement (eighth counterclaim), set for
2:30 12/9/04 for [225-1] motion for partial summary judgment
on Breach of Contract Claims. (Oral Argument Requested) To be held
before Judge Kimball cc:atty ( Ntc generated by: KJ)
263-1
Filed: 08/26/04
Entered: 08/27/04
Ex parte motion
for leave to file
e p
m/-/lv f -

blk

1530308
Docket Text: Ex parte motion by SCO Grp for leave to file overlength
memorandum re: renewed motion to compell
264-1
Filed: 08/26/04
Entered: 08/27/04
Reply to response to motion
rply
resp m/-/- - -

blk

1530309
Docket Text: Reply by SCO Grp to response to [190-1] renewed motion to
compel discovery
265-1
Filed: 08/26/04
Entered: 08/27/04
Memorandum in opposition
mem opp
-/-/- - -

blk

1530310
Docket Text: Memorandum by SCO Grp in opposition to [212-1] motion to
strike the 7/12/04 Declaration of Christopher Sontag
266-1
Filed: 08/26/04
Entered: 08/27/04
Declaration
decl -
-/-/- - -

blk

1530311
Docket Text: Declaration of Christopher Sontag Re: [265-1] opposition
memorandum

http://www.utd.uscourts.gov/documents/ibm_hist.html

[ Reply to This | # ]

Opening sealed statements
Authored by: Anonymous on Friday, August 27 2004 @ 11:46 PM EDT
SCO is daily defaming, slandering and libeling the worldwide Linux community
with statements that it is making to the court. Would it be possible for the
community to achieve standing in this case through a class action that would
allow us access to these sealed statements?

[ Reply to This | # ]

Leon Brooks Powerfully Answers SCO's O'Shaughnessy
Authored by: lmbell on Saturday, August 28 2004 @ 01:44 PM EDT
Shaughnessy is a minor sidelight on all the incredible comments SCO has made to
the press without any substantial basis. I know this has been alluded to before,
but as IBM drags SCO into the decisive endgame, it's worth remembering that
there are probably serious lawsuits waiting in the wings when the courts finally
tells SCO that it is _dead _wrong_

1) in the IBM case about its claims of infringement in Linux and

2) claiming in the Novell case to own any IP in Unix Sys V (it may be licensed
to distribute and to collect royalties, but that's probably all it got from
Novell).

All of those idiotic statements by dear friend Darl affected the price of SCO
stock. To the extent they were knowingly or reckless false or misleading and
investors relied on them in buying or selling SCO stock, that constitutes
securities fraud. There is a good chance that securities class action plaintiff
lawyers are just waiting for Judge Kimball and the judge in the Novell case to
ream SCO on summary judgment each time. When you lose in summary judgement
because you didn't have facts to support your case, the conclusion to be drawn
is that you made public statements knowing you didn't have the facts to support
them in the first place.

The SCO disaster story won't end with summary judgment in those two cases.

BTW, IAAL, and have done a decent bit of securities law over the last 26 years,
although rarely involving public companies. But the disclosure/misleading
statement/misleading omission issues arise (referred to as as SEC Rule 10b-5
issues) in every situation where company officers make representations to the
public and/or to private investors in connection with (affecting) the purchase
and sale of their equity securities.

LMBell (esq.)

This is of course not legal advice or a legal opinion, but a report of
expectations based on my experience.

[ Reply to This | # ]

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