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A Criminal Lawyer's Take on SCO:
Monday, August 04 2003 @ 03:07 AM EDT

A Criminal Lawyer's Take on SCO:
They Not Only May Lose, Sanctions Possible

I had a long email conversation with Webster Knight, a lawyer who does criminal law. Of course, I wanted to pick his brain on the SCO thing. He gave me permission to share with you his personal views on the SCO case. As always, when lawyers write for Groklaw, I preface it by saying that he isn't working on this case, and he hasn't researched it the way he would if he were, and this isn't legal advice, and not all the facts are yet known, and this was originally a personal email, written to me, not the public, but with that disclaimer, here are his personal opinions and thoughts on what he has seen so far:

"SCO has already given away what they now seek to protect. They are telling the court 'oops, excuse me, we did not mean to give up our control of that code. We did not realize Caldera gave it away. We also didn't realize that when we sold our Linux we were using the GPL on our own stuff. Since we didn't realize this, let us take it back. All of the people that benefitted from our errors or were accidently misled, must now pay.' [I guess they are subject to a counter claim for negligence. They should not be able to benefit by their own negligence.]

"Further by their actions they are saying: 'We want people to pay. We don't want them to correct our error by telling what is the violated code so they can stop using it. We will not give them an opportunity to mitigate damages any sooner than necessary.' In the old terms of equity court, they do not have 'clean hands.'. . .

"Your site alone has given him [Boies] some nearly impossible facts to choke down. Namely the SCO-GPL and the Caldera voluntary contributions. They may well lead to a quick summary judgment . . . .

"Indeed SCO and their attorneys may have to confront the possibility of Rule 11 sanctions, such as legal fees. Certainly due to your and IBM's digging, they have less than they started with. They may be paying to get out of the suit if it becomes glaringly apparent that it has no merit. Further discovery and more Hellwig-like disclosures might render all claims frivolous. . . .

"SCO is presumed to know what they did with their own code. They gave it to Linux; they gave it to IBM; they then distributed Linux themselves under the GPL. They are now saying they erred, and that they were negligent but that also IBM snuck it past them what they gave away. They are trying to regain their virginity. It is inconceivable that SCO can benefit from its own ignorance (of the GPL and their own contracts) and their own negligence. They are a corporation with perfect, superhuman memory. They can't say I was too busy and didn't understand. What their employees did, short of a crime, they did.

"[SCO to Court or Jury: 'Your honor, please make these people pay us. We didn't realize we had let the cat out of the bag! If we had asserted our rights, they wouldn't have used our stuff and violated anything. Because we were asleeep at the switch, they have used our stuff. Through our error we have tricked the world. Give us a windfall, deserved or not!]'

"If they knew all this when they started, then they may face some stiff civil liability. I guess it could rise to criminal intent. Certainly if it could be found that MS or some other force put them up to this, knowing the frivolity of abandoning their own GPL; the frivolity of denying their voluntary contribution of the code to Linux; and the frivolity of denying their contractual grant to IBM, then we may have a conspiracy. One of the above may be enough, particularly if there is a quick summary judgment."

When he says frivolity, he doesn't mean ha ha party time. He means it as in frivolous lawsuit. That's what you can get fined for, if you bring a meritless lawsuit. Here is a Utah case (a different circuit, but the idea is the same) where a judge ordered sanctions against the party bringing the lawsuit. It's near the end. Meritless claims are an abuse of the process, and both the party and the lawyer can be sanctioned. So, let's keep digging, until we win. He's saying we're making a difference. I was sure you'd want to know this, outside of Utah, that is.

It's DiDiotic Time

Here's my all-time favorite quotation from our favorite "analyst":

"'Linux says it is free and it is open, but it has not stepped up to the plate and said how much it costs,' says Laura DiDio, an analyst with The Yankee Group.

"She says her research shows that one-tenth of one percent in difference on reliability from one operating system platform to another can result in an additional 63 hours of downtime and generate US$700,000 to $3.5 million in additional support and administration costs depending on the size of an organization."

Heh heh. She's a riot, Ms. DiDio. How much it costs? Downtime? If MS now plans to argue that we should use their products instead of GNU/Linux to avoid downtime costs, the end of the world must be nigh, for sure. At least lightning from heaven ought to strike them. Of course, standing so close to MS as she does, the lovely and tireless Ms. DiDio might be struck, too... hmm, we can't have that. She's so funny, I'd actually miss her.

Downtime costs, of all things to choose to research -- the single least likely to convince of all the topics in the universe in any discussion about the comparative merits of Windows and GNU/Linux. Are analysts not allowed to try GNU/Linux, I wonder? They're allowed to read freely, though, aren't they, to find out what's going on and all? Maybe she didn't get to read about the two Windows security flaws just this week, speaking of down time. She actually gets paid for this research. And I'm doing all of mine for free. Hmmm. There does seem to be an imbalance in the universe.

Gartner is my second favorite, and here's their latest, which certainly deserves an Honorable Mention in funny:

"LINUX penetration within Australian enterprises may reach 90 per cent within three years, but it will remain a niche technology, with only 10 to 15 per cent of IT infrastructure running on the open source software, according to Gartner.

"According to a survey of 121 large Australian companies, about 52 per cent of businesses now use Linux in their server environment - up from 39 per cent last year. Australian companies follow Taiwan in being the Asia Pacific region's highest adopters of the technology."

Now, when I read that, after I wipe away the tears of laughter so I can see, I read that Linux is growing in Australia, compared with last year. The headline? "Linux to Remain Niche: Gartner". It's to laugh. I've written headlines in my time, and I'd never have come up with that one from that story.

Meanwhile, an IBM spokesman compares open source to a tidal wave and says they have customers flocking to them:

"'The tsunami of open source, it's definitely coming now,' he said. 'It's no longer a glimmer in someone's eye as it was 10 years ago. It's real, and it's real for business.'"

Of course, that's PR, but it tells me that the legal team isn't concerned, and the word now is Go. Their legal analysis is complete. And they are not backing down. Remember how SCO's complaint quotes IBM people? The fact that they are silent no more tells me they aren't worried. I am really starting to look forward to their legal filing, probably some time this week.


I just learned that Sun's Jonathan Schwartz, of all people, is going to speak there. So, if you're goin' to San Francisco, ask him about Linux being "irrelevant" and let me know what he says, will you?

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