I don't know why I didn't think to share it all with you at the time. Probably I was naive and too new at dealing with mainstream media, if Lyons qualifies for that term, to even think of it, although I note I was savvy enough to keep it to protect myself from being misquoted. I didn't need to bother, because he not only didn't use a word of it, his eventual article violated even the spirit of what I said, if you remember. His questions reveal his bias, I think.

It seems appropriate to share it with you because it's part of Groklaw history and the story of Groklaw's beginnings, and because it refutes some lies that have been told about Groklaw. I also note that in December of 2003, I mentioned that SCO was still distributing Linux. Also, you will see that I didn't start assuming that SCO was wrong with respect to all its claims, but I knew from early on the GPL would be its downfall.

****************************

> -------- Original Message --------
> Subject: following up
> From: "Lyons, Dan"
> Date: Thu, December 11, 2003 6:49 am
> To: pj@groklaw.com

> >PJ--
>A few more questions.

>How many articles have you written on Groklaw since you launched in May?

427 have been published. Maybe 10 or 12 have been by others.

>How many articles do you publish per week? What's the most you've ever published in one week or one day?

It's generally one or two a day. I don't know what is the most. I'm sorry I don't have time to investigate. Maybe 4 or 5 in a day. I guess you could count up the days since May 15 and figure it out as an average. I've missed a day here and there, especially at the beginning, when things didn't happen at such a furious pace as they started to when the lawsuits began.

>Have you ever published anything that could be considered favorable to SCO?

I have tried to be fair always. I'll print things that are not favorable to Linux, if they are true. Groklaw is about truth. If, for example, somebody contacted me and told me he'd found infringing code, I would publish it if I verified it as true, in a heartbeat. I've never hidden anything negative. This story is just so one-sided, you can't help but be on that side, if you know the tech. Especially at the beginning, although I never wanted SCO to prevail, I wasn't sure if there was any truth to some of what they were saying. I never liked what they were doing. I always thought they should just tell Linus where the infringing code was, if it existed, so it could be removed. Their refusal to let that happen made me feel that either they had no legitimate beef or they wanted to tax Linux illegitimately. Nobody wants their code. If it existed, everyone wanted to remove it. Offers were made repeatedly and SCO just refused. You find it hard to understand the feelings in the Linux community, because you don't understand the tech. If you were more technically knowledgeable, you'd see that the community isn't biased. It just knows. The tech is clear. SCO is not standing on solid ground.

As time went on, it became clearer who they are and what they want and how much validity there is and isn't to their legal claims, and my position became clearer on that too. I still try to be fair, though, and I never land low blows. I'll give you an example, I received an email from a heavy-duty Linux person which included some negative words about one of SCO's executives, and I asked if I could print what he wrote, but minus the small part about the individual. He agreed. It probably would have made headlines had I printed it. I don't care. Groklaw has standards. I ask my readers not to comment in mean-spirited ways. No obscenity, for example, no personal attacks. I think it's important to fight fair. I do want to win, but I want to do it with integrity intact. I understand too that their behavior has been what I would describe as outrageous and deliberately, it seems, provocative, and that evokes real emotions. They are trying to take code that honorable people wrote and released under a license they chose to use and they are watching now as month after month their intellectual property rights are being trampled by SCO. Even McBride gets emotional when he talks about such a thing happening to his IP, so it's natural the other side feels that way too when he does it to them. I have formed the impression that SCO wants the Linux community to lose their tempers and behave badly. At least on Groklaw, though, folks try hard not to. I get a lot of email commending Groklaw, because the level of comments is unusually high, they tell me. I've seen that mentioned in media coverage too. People feel comfortable, they've told me, even if they aren't Linux users. That's by design. I want people to feel welcome. We have readers who only use Windows, for example. ProSCO comments are left on Groklaw. Also, Groklaw doesn't seem to attract a teenage crowd to the degree some other sites do, so maybe that is why the level is high.

I don't at this point in the story have much to say that is positive about SCO myself, because I've watched this story unfold every single day since it began and I've tracked it more closely and in greater detail than probably anybody on earth, and I can't see validity, legally or ethically, in SCO's position and I've seen things they've said and done that deeply shock me. I didn't start out there. I arrived there.

>Have you ever published anything that was critical of IBM?

So far they haven't done anything important that I could criticize in good faith. Their legal work has been outstanding. I think even SCO's lawyers would tell you that. I really do admire their skill. That's genuine. I certainly have said positive things about Boies, more so at the beginning than since the new financial arrangement was announced. I've always admired his talent. The first story I ever wrote for my blog was about him and how much I admired his skill. And I deliberately have refused to write about his ethical troubles in Florida. I get sent stories about it, but so far I've never printed it. It just feels smarmy to do it. You seem to want to write a story about unfair attacks on SCO. All your questions seem to me to be trying to get that point expressed, but you've come to the wrong person. I have always tried to be fair. The only negative material Groklaw has ever printed about Boies was this week, in the story revealing that he wasn't hired on a contingency basis after all. The public was misled.

I'm not crazy about corporations using patents in litigation. I have certainly written about that. I understand why in this case IBM is doing it, and I hope they prevail, but I've written about patents and why I hope there will be adjustments to patent law. At some point, nobody will be able to write software except a couple of large corporations. If software companies really enforced their patents, it would destroy the software industry, because they -- proprietary companies -- all violate patents all the time. Stowell even mentioned it when IBM filed its patent counterclaim. Usually proprietary software companies don't strictly enforce. It's like a gentlemen's agreement, or like the Cold War. I just hope for a disarmament treaty, so to speak, some way that creative people can continue to innovate without being sued right and left. Software is math. There are only so many ways you can write 1 and 1 equals 2. If you let someone patent 1 plus 1 equals two, at some point only the patent holder can write software. I hope the courts continue to grow in their technical knowledge, because then I know the situation can improve. And I believe, personally, that the world needs good and solid software. I believe US security, for example, would be enhanced if a lot of people switched to GNU/Linux software. I believe a monoculture is dangerous. Some level of cooperation is required to create good software. That is one reason GNU/Linux software is superior. It is developed using the scientific method, which very much includes sharing ideas.

Also, at the beginning, I had no idea if IBM was guilty or not, so for a long time Groklaw's position was that I didn't know what that part of the story was going to turn out to be. In the interview I did with Linux Online, for example, I pointed out that without seeing all the contracts, it wasn't possible to know who was right or how it would turn out. Now, we've seen the contracts in discovery, and I'm clearer as to who is right and who is wrong, from what we have seen so far, but there are still elements that are unknown. The contract dispute is separate from the Linux dispute. It's only SCO's refusal to show the infringing code that has kept Linux in this story at all, and now it appears there is no infringing code, unless SCO can bring out something new, and they'd better hurry, I'd say, because otherwise I expect IBM will file a motion to dismiss.

>Have you ever entertained the notion that SCO might have a legitimate claim? Or have you believed from the start that SCO's claims were unfounded?

As I just mentioned, I did entertain the notion that they might have a legitimate claim against IBM at the beginning. I also entertained the possibility that there might have been code put in Linux improperly. I doubted it, but things like that are at least conceivable. I think everyone at the beginning just wanted SCO to tell what the code was so if there was a problem, it could be fixed to their satisfaction, indicating that the community at large took them seriously and wanted to make any legitimate problems right. They just won't show the code they allege is a problem so it can be fixed, what they did show wasn't a problem, and now we see them saying it's more about methods and concepts than about any literal copying.Their story keeps changing.

After SCOForum, their code allegations pretty much went poof. Also, the community carefully looked for any problem code. The Linux kernel is carefully, and publicly, chronicled. Who donated what code when is all there in broad daylight. That's why SCO is in a pickle. They could have noticed any infringing code years ago, if it really existed. It's certainly more exact and complete a record than any proprietary code, from what I've heard. Nobody can find any significant issues. Nobody. Some of the finest and most skilled programmers on earth looked and they can't find anything. They just can't find any significant code that could be at issue. That naturally causes disgust when we hear SCO persist in making what now appear to be baseless accusations and grandiose claims for billions in damages. I feel sorry for people buying the stock in hopes of a huge payout from the lawsuit. I've looked and looked, but I see no way that can happen, unless something new comes to light.

One thing I definitely knew from day one was that their Achilles heel was the GPL. I started writing about that very early. I knew that their distribution of Linux under the GPL for so many years put them in a no-win position. No one forced them to distribute GPL code. But they did. They IPO'd and made money from Linux. Now they want to back out of their legal obligations they willingly took on. No court rewards backing out of something you agreed to just because you changed your mind and wish the terms were now different. So I knew that they were in a hopeless position when it came to the GPL. That's why their only hope is to claim the license isn't valid. If it isn't a valid license, however, then they have been copyright infringers for many years. There are penalties for violating other people's copyright rights, and they will have to face the music there even in the unlikely possibility that they could get the GPL tossed over a cliff. That I understood right away. The GPL is their tar baby. The more they fight it, the worse it gets for them. It's just lose lose.

I carefully chronicled their continued distribution of Linux under the GPL, and published what I saw, because I knew legally what that meant for SCO. I knew it meant they couldn't mail out invoices without legal troubles, for example. That's why we sent them the Open Letter, to warn them. I thought maybe they didn't understand what they were about to do, and I knew they were going to be sued all over the country the minute they did that, not to mention what governmental agencies were likely to do. It seemed only fair to tell them, so we did. They did not mail out invoices. Now, they are making what all the lawyers I have seen speak publicly, outside of SCO's attorneys, say are ridiculous claims that the GPL is unconstitutional. They are at the same time still distributing GPL code, last I checked, and their current product line includes GPL code, like Samba. They are therefore depending on GPL code for their business, making money from using it, while simultaneously attacking its legal validity. Do you not see a problem there? I think the courts will too. I know I do. So as their position has become more clear over time, so has mine.