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MS anti-OSDL PR, 2000: "O'Gara said she was going to call them, so it looks better coming from her" - updated 4xs

Wednesday, April 18 2007 @ 12:24 PM EDT

Speaking of vendors using journalists, here's an interesting exhibit, Plaintiff's Exhibit 4081 [PDF] from the Comes v. Microsoft collection. It's an August 2000 PR strategy email from Microsoft's PR firm, Waggener Edstrom, regarding the then-pending announcement of the formation of OSDL. And who should pop up but Maureen O'Gara, offering to lend Microsoft and WaggEd a hand, according to the email.

Microsoft wanted to have its own spin for the press when this announcement happened, I gather, and it's certainly fascinating, like picking up a rock, to see how they do this kind of thing. In the exhibit, you find Waggener Edstrom's "PR plan to address the OSDL announcement next week," sent to "David Martin (WinMKTG)," among others, and some interesting nuggets, which I highlight in red:

As discussed in our PR meeting this morning. David & I have spoken with Maureen O'Gara (based on go ahead from BrianV) and planted the story. She has agreed to not attribute the story to us....
Tactics: ...
* Inform Maureen O' Gara (Senior Editor Client Server News/LinuxGram) or John Markoff (NYT) of announcement on Aug 28, 2000. Owner dougmil (Approval received from BrianV to proceed)
* Contact Eric Raymond, Tim O'Reilly or Bruce Perrins to solicit support for this going against the objectives of the Open Source movement. Owner: dougmil [Doug Miller]. Note that I will not be doing this. Maureen O'Gara said she was going to call them so it looks better coming from her.
* Issue "buddy mail" to target press list at the time of the announcement and begin to proactively call-down to editors immediately after announcement made. Owner: davidmar

So. I will let you draw your own conclusions. Of course I contacted Bruce Perens and Eric Raymond.

Neither can remember speaking to O'Gara about the OSDL announcement. Bruce says he was at HP at the time, and while they did speak with O'Gara in general, he doesn't recall any specific conversation about OSDL: "It's all news to me. Interesting to see how this looked through Microsoft-colored glasses. I was at HP while this was going on. We would talk with O'Gara, but considered her the most sleazy of her bunch. I don't remember talking with her about OSDL. The OSDL founders were not out to subvert the GPL, interesting that MS would think so." And Eric pointedly said, "I do not recall ever having been contacted about Maureen O'Gara on this or any other matter -- and I don't think she can possibly be stupid enough to believe I'd help her do one of her trademark hatchet jobs."

No comment from me on that. But I'm thinking plenty. So what does it mean that they can't remember any contact? Eric suggests the email might be an early draft, with the plan later revised to be more realistic about who to contact. It was also a long time ago. But what remains is the O'Gara offer to WaggEd/Microsoft to do a little stealth fronting for them, as I read it.

Hewlett-Packard, Intel Corporation, IBM and NEC did indeed issue a press release on August 30, 2000:

2000-08-30 -- INDUSTRY LEADERS FORM OSDL
SANTA CLARA Calif., Aug. 30, 2000 - Hewlett-Packard, Intel Corporation, IBM and NEC Corporation today announced the Open Source Development Lab, the industry's first independent, non-profit lab for developers who are adding enterprise capabilities to Linux*. The four companies plan to provide significant equipment and funding to the lab over the next several years. Additional contributors and sponsors of the lab include Caldera, Dell, Linuxcare, LynuxWorks, Red Hat, SGI, SuSE, Turbolinux and VA Linux.
Supporting the Open Source Development Model
The lab will support existing industry projects that use open source licenses and are established according to today's open source development model. The lab will not create new projects; instead, it will help accelerate existing or new projects developed by the open source community. The initial lab projects will be announced later in the year after an open, neutral process for choosing projects is coordinated with the open source community. Initial projects are expected to range from tools development to kernel projects that advance the enterprise capabilities of Linux. More information about the lab and its initial projects can be found at www.osdl.org. Independent Board to Govern Lab The lab will be governed by an independent board and management structure, and will consist of members from the open source community as well as representatives of sponsor companies. An independent executive director employed by the lab will implement policy, make funding decisions and work with the open source community to select projects.

As you can see, Caldera was a founding member and OSDL was designed from day one to be vendor-neutral. Yes. They know better, in short.

[Update: We mere mortals can't read what Ms. O'Gara wrote about OSDL back in 2000, but those with supersubpoena powers probably can. Here is where she references calling OSDL OSF2 when she wrote about it again in 2003. The reference to OSF2 might remind some of the case of Addamax v. OSF, from the early nineties, litigation it was alleged by the defendants Sun "covertly funded". One of the attorneys for Addamax on that case was a James V. O'Gara of Kelley, Drye. I've always wondered if he might be related to Maureen O'Gara. In any case, that is the OSF she is referring to, and yes, IBM was a member of OSF back in the OS/2 vs. Windows NT days.]

[Update 3: Mr. O'Gara is listed as the registered agent for Maureen's G2 Computer Intelligence company at the New York State Division of Corporations Entity Information. Groklaw member joef found that.]

Well, well. The plot is now thickened to pea soup consistency. And here's the article Maureen O'Gara wrote in May of 2003 about Novell telling SCO it had kept ownership of the UNIX copyrights, the article that led to her recent deposition. And finally, here's an article published by Unixgram-x in 2000, which says USL was having trouble making money from SystemV Unix and sold it to Novell not for cash but for shares. Oh, Maureen O'Gara's G2 filed a motion to intervene in Addamax, just as she did in SCO v. IBM. From the docket, 1:91-cv-11152-JLT - Addamax Corporation v. Open Software, et al:

255 - Filed: 09/08/1994
Entered: 09/09/1994
Affidavit
Docket Text: Affidavit of Maureen O'Gara, President of G-2 Computer Intelligence, Inc., applicant for Intervention, filed. (lt)
256 - Filed: 09/08/1994
Entered: 09/09/1994
Terminated: 09/19/1995
Motion to Intervene
Docket Text: Motion to intervene by G2 Computer Intelligence, Inc. , filed. (lt)
257 - Filed: 09/08/1994
Entered: 09/09/1994
Memorandum in Support of Motion
Docket Text: Memorandum by G2 Computer in support of [256-1] motion to intervene by G2 Computer Intelligence, Inc., filed. c/s. (lt)
263 - Filed: 09/19/1994
Entered: 10/11/1994
Description not available
Docket Text: Letter dated: 9/28/94 to: the Chief Judge re: as counsel for Sun Microsystems Inc. ("Sun"), having been advised of Motion of G2 Computer Intelligence, Inc. to intervene in action for purpose of securing public access to non-proprietary unprivileged information. Noting: Sun has no opposition. filed. (lt)

Small world.

[Update 4: Anonymous reminds me of the link to the Daniel Wallace litigation, which O'Gara reported on favorably when no one else did. Let's compare the Addamax language with his complaint:

October 5, 1992, AllBusiness.com on Addamax:
The suit charges that OSF, based in Cambridge, Mass., and its seven corporate sponsors "have acted as an illegal cartel by conspiring to fix prices for software technology, setting price ceilings in certain markets, and providing competitive advantages to the sponsors by dictating standards favorable to their technologies and strategies."
Remember this article in June of 2005 about Wallace's suit against FSF? Recall the wording from Wallace's complaint in Wallace v. IBM? It stated that IBM "conspired to promote a copyright licensing scheme employing the GNU GENERAL PUBLIC LICENSE [H.I.] to fix the prices of computer programs."

And you can read about O'Gara's coverage of the litigation here. Note from what I wrote about her scoop (where did she get that?) that even back then, I was wondering about connections:

Of course, Ms. O'Gara discovered this anti-GPL lawsuit by means of her constant scouring of Indiana civil suits in Federal court, I'm sure. We know she lives to understand the law, and we wish her the very best in her pursuit of specialized knowledge....I can't help but wonder, if we watch carefully, if we'll find a Microsoft and/or SCO tie. Let's see if a lawyer volunteers his services or feeds suggestions informally. If there is a conspiracy, might the strategy be to have someone fight the GPL who has nothing to lose, unlike SCO, who can't fight the GPL and still distribute GPL'd code -- which they still do -- and who are vulnerable to copyright infringement claims, brought by IBM (and conceivably to be brought by the FOSS community at large) if they don't accept the validity of the GPL and yet distribute GPL'd code? Wallace certainly seems to share SCO's original ideas on the GPL and how it is ruining the marketplace for proprietary software. Remember Darl's Open letter on copyright, which I called "Darl's Greed is Good Manifesto"? And then there is the fact that MOG keeps giving him prominence when no one else I've seen takes him seriously.
Hey, FSF. I hope you are subpoenaeing his emails -- and Maureen O'Gara's too -- going back a couple of years, at least. We might get to the bottom of the conspiracy, if it exists, if my instinct is right. (Do I hear the sound of delete buttons clicking all over the country?... naughty, naughty. Oh, and smashing your hard drive... it's been tried, and it didn't work....
The dynamic duo. Maureen O'Gara and Daniel Wallace. What a couple. It's a metaphor, one that informs us which side will win this anti-GPL war -- you can tell by the quality of the warriors on each side that the winner won't be Microsoft. They'd best learn to get along with and play nicely with the GPL. Get some execs on it right away, Microsoft. This is a Quixotic quest that can only damage you, battling the GPL. Windmills can hurt you if you draw your sword to fight them, as can the GPL.)

I remember that I wondered at the time if James O'Gara had any involvement in that litigation, behind the scenes.]

And for those that like mysteries about time stamps and believe they are evidence of collusion between a party and the media, those with sooper subpoena powers may want to ask why this small UK site [link no longer works, and robots.txt blocks Wayback], which claimed to have no connection to Maureen O'Gara, but written by a "Maureen," appeared to have a SCO court filing [PDF] before it was entered by the clerk. It was filed with the court on a Friday, written about on Saturday by "Maureen" (bylined "Posted by Maureen on January 28th, 2006," it began "In a motion filed yesterday with the Utah court"), but not entered by the clerk until the 31st, if you check Pacer. If I were on the trail, I'd look to see if that filing appeared on Yahoo! SCOX message board first, and if so, posted by whom? When did Al Petrofsky get it? I can't remember. The plot thickens again.... Actually, as you know, I consider it all Horse Feathers, to quote the Marx Brothers, who certainly could do a fine movie, A Night at the Courtroom, were they all alive and still making movies today.

Speaking of plots thickening, back when Maureen O'Gara published her stalking article, I received an email from Jeff Merkey in May of 2005, claiming to have been involved: "If you are wondering who gave MOG your address and who tracked you down, well, guess who? Now that you have been exposed, my task is complete here." I have no way to verify if the claim is true, of course. It may be like bombings in the Middle East. How do you know if those claiming responsibility are being truthful? I mention it because someone using the nym basicdistrust whom the locals on SCOX Yahoo! message board seem to think is Merkey just posted a rant about me, which ended, "Death to Linux! Hell to dishonest paralegals!!" I take that as a potential threat against my person, actually. Just in case anything happens to me, you'll know where else to begin looking for clues in SCOworld and its environs.

[Update 2: The nym has now chosen to deny being Merkey, but has not stated who he is, relying upon anonymity, ironically enough. I do think SCO should make a public statement disassociating itself from its extremist supporters, however, and make it clear that such threats are not acceptable.]

Here's the complete exhibit as text, with the exception of the list of press and analyst contacts at the very end, which you can read from the PDF. It's certainly worth doing. It's a long list of press/analyst contacts, many with notations as to whether they were perceived to be "balanced" or "negative", such as Stephen Shankland and Paula Rooney in the "negative" category and Rob Enderle and Barbara Darrow in the "balanced" group. And some have no category, like Dan Lyons. I don't know if that means that category was unknown or already sewn up or what. I'll let you be the judge. Here's the exhibit:

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

From: Doug Miller
Sent: Monday, August 28, 2000 12:03 PM
To: Stephanie Wettstein (Waggener Edstrom); Katrina Busch (Waggener Edstrom); Chuck Humbie (Waggener Edstrom); Steve Aeschbacher (LCA)
Cc: David Martin (WINMKTG); Adam Sohn; Vivek Varma; Brian Schuster; Dan Nesult; Dan Crouse (LCA); Tom Burt (LCA); Chris Meyers (LCA); Lisa Tanzi (LCA); Kim Akers (WINDOWS); Tom Phillips; Carl Stork; Mike Porter; Bill Veghte; Brian Valentine; Jim Ewel; Vivek Varma
Subject: FW: OSDL PR Plan - attorney client privileged

attorney client privileged

Stephanie/Kate/Chuck, please find attached the PR response plan for the anticipated OSDL announcement. As discussed in our PR meeting this morning. David & I have spoken with Maureen O'Gara (based on go ahead from BrianV) and planted the story. She has agreed to not attribute the story to us. WaggEd actions include reviewing the positioning, review the proposed buddy mail, review Q&As, etc.

Privileged Material

Redacted

We expect this to leak later today. At that point we will proactively respond or contact press with our positioning points.

OSDL PR Response Plan

Situation:
Microsoft expects

1. The public announcement (8:30 am Wed Aug. 30 2000) of the following structure (referred to as OSDL) that is a consortium between Intel, Redhat, IBM and HP
* Independent, limited # of employees, non-profit entity.
* Participiting companies contribute equipment and money
* Two levels: (i) founders/steering board, big $ contributors, (ii) general members not steer but contribute technology, benefit from "the IP protection"

2. OSDL's operations guidelines will be to delop a set of infrastructure for open source development projects, claim that target is very high end space competing against UE10000.
3. OSDL to provide:
* IP buffer for the Open Source community -- "solving the IP problem of the GPL" -- "to get around GPL issues".
* Linux primary beneficiary, other OSS projects could benefit.
4. OSDL's possible goals include:
* IP buffer. Ship GPL code unchanged without donating via GPL patents in that code.
* Chip demand increase
* Converged Linux/GPL code base (required to make available to community)
* "Planned" releases, coordination, obvious OSS inertia and royalty savings c.f. Windows
* Undifferentiated "subsidy" foundation for their "expensive" proprietary, add-on products
* "Industry standard" APIs for add-on products (i) mitigating risk of drawing of value-add products into the GPL, (ii) direct focus of OSS energy towards slowing how much code flows into the GPL to preserve opportunity for expensive add-on products.

Objectives:

Reduced potential negative PR to Microsoft, reinforce our message that we are here now with customer solutions and question the customer value of this announcement.

Actions:

Positioning:
1. The drive to build the Next Generation Internet is happening now.
* Microsoft always welcomes fair competition, as in the end this benefits customers.
* Microsoft is in the best position today, to go after this business and solve real customer business problems
* Microsoft focuses on customer solutions, rather than "fashion" technologies
* We have good relationships with Intel, IBM, HP and others who are having great success solving business customer needs today with Windows 2000.
2. Bad news for Sun & GPL
3. Old UNIX guard attempting to hijack Linux to go after Sun
* This will drive a wedge between the original Linux champions who are for "free" software and the established commercial UNIX "old guard" further confusing customers
* Old UNIX guard want to adopt the UNIX business model where they provide proprietary differentiation on top of a common base as they realize they can't add any competitive differentiation under the GPL.
* Appears to be business as usual for the fragmented UNIX market and very reminiscent of previous UNIX alliances.
4. These types of alliances ultimately do not benefit customers and have historically been prone to failure (OSF all over again for example)
* Customers want solutions today and clearly it will take a long time for this new group to produce viable production quality, customer-ready solutions.
* Linus Torvalds, the creator of Linux, himself recently said Linux was 5-10 years behind Windows.
* Linux and Open Source are supposed to be all about "free" technology and no one group having competitive advantage. This new alliance seems to go against these principles.
* What about HP-UX, IBM AIX and the IA-64 Monterey project? Are these dead? HP and IBM have said in the past that those platforms are what they are using to target the high-end UNIX segment.
Tactics:
* Confirm Compaq and Dell are not part of this announcement and are informed of Microsoft's position. Owner: Compaq - jime, Dell adamso
* Inform Maureen O' Gara (Senior Editor Client Server News/LinuxGram) or John Markoff (NYT) of announcement on Aug 28, 2000. Owner dougmil (Approval received from BrianV to proceed)
* Contact Eric Raymond, Tim O'Reilly or Bruce Perrins to solicit support for this going against the objectives of the Open Source movement. Owner: dougmil [Doug Miller]. Note that I will not be doing this. Maureen O' Gara said she was going to call them so it looks better coming from her.
* Issue "buddy mail" to target press list at the time of the announcement and begin to proactively call-down to editors immediatley after announcement made. Owner: davidmar
* Contact analysts (Summit Strategies or Creative Strategies) for their assessment of implications. Owner: davidmar

Publication call-down:

potential press list only - confirmation required by Waggener Edstrom

[Contacts_xls]

Buddy Mail:

[icon]
Old UNIX guard
[illegible]Linux

Rude Q&A:

Q. So what does Microsoft think of this announcement?
A. Microsoft welcomes healthy competition but we don't see how this will benefit customers. Groups like these typically take years to get their act together -- for example OSF, the Open Group, iABI, the ACE initiative, the UNIX SVR4 "Destiny" project, etc. Microsoft has solutions for customers today.

Q. What does this say about your OEM relationship?
A. Microsoft has healthy relationships with IBM, HP, Intel and have they substantial successful businesses based around Windows solutions. I'm sure their commitment to Microsoft technologies will not be affected by this announcement.

Q. Is Microsoft developing a version of Office for Linux?
A. No, we have not seen volume demand for this in the commercial marketplace.

Q.There seems to be a momentum behind Linux based research from IDC and Netcraft
A. Netcraft recently revised their methodology to more accurately describe sites actually being used by customers. Windows and Linux have approximately the same number of active sites however the big news is Microsoft technology is running half of the servers that power the Internet. Many of these servers are predominantly deployed within the Fortune 500 and other major businesses around the world. IDC's recent research highlights the number of copies of Linux distributed -- however given that Linux is free, this by no means represents real-world usage of Linux as a production operating system.

Q. Does Microsoft have plans to open source any of it's products?
A. Microsoft have a number of source programs today for customers and developers. We are continually listening to feedback from customers on how best to help them provide great solutions on Windows platforms.

Questions for the press to ask OSDL:
Q. What about other UNIX offerings (AIX, HP/UX, Monterey) from the participants?
Q. How does this play versus all the other announced initiatives (LSB, GNOME Foundation, Trillian, etc...)
Q. This sounds like a closed club -- we thought the whole point of open source was is open for anyone to join?
Q. Isn't OSDL simply another well-funded Redhat
Q. Does this indicate that RedHat's existing business model is untenable?
Q. Did OSDL founders consult Linux Torvald, Eric Raymond, Bruce Perens, et al. re appropriateness and objectives of OSDL formation?
Q. What is the corporate structure of OSDL? Who owns it? Who controls it? Will OSDL make the agreements between its founding members public?
Q. Can other companies join OSDL and, if so, what types of participation are possible?
Q. Would OSDL consent to OSS community oversight?
Q. Who will control the work done by OSDL? Will OSDL work be "open" to public inspection, i.e., conducted on the web with unrestricted public access? If not, why not?
Q. Who will have ownership of IP relevant to code developed by OSDL? What about code contributed to OSDL?
Q. Will all code released by OSDL be released under the GPL? If not, what code will be subject to different terms/conditions, what terms/conditions will apply, and who will decide what code to except from the GPL?
Q. How can OSDL avoid the code it releases being subject to the GPL if OSDL is modifying GPL code?
Q. Will OSDL provide any representations/warranties/indemnification that code released by OSDL is free from infringements?

Doug Miller mailto: [redacted]@microsoft.com
Microsoft Corporation / [redacted address, phone, fax, cell/pager number]

HIGHLY CONFIDENTIAL

MS anti-OSDL PR, 2000: "O'Gara said she was going to call them, so it looks better coming from her" - updated 4xs | 466 comments | Create New Account

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Corrections

Authored by: BC on Wednesday, April 18 2007 @ 12:33 PM EDT

..go here