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SCO Tries to Use Lineo Case Against Open Source
Tuesday, October 14 2003 @ 02:23 AM EDT

I knew it. I knew it. I knew it. What a nose I have for these guys.

Already, SCO's Blake Stowell is pointing to the Lineo case as an example "proving" that open source is a problem.

As soon as the story broke, my first thought was to wonder if maybe Canopy went public with it so the case could be used by SCO as an example of problems with the GPL. Actually, that was my first publishable thought. Whether that happened and it's all coordinated or SCO is just coincidentally taking advantage of the case, I'll leave up to you to decide, but take advantage of it they certainly are. Here is the SCO take:

"SCO spokesman Blake Stowell pointed to the case as evidence that open-source software such as Linux needs to be handled and tracked more carefully. 'Fundamentally, there needs to be some mechanism in place to better police open source,' he said."

Evidently the only such case they could find was one where a fellow Canopy Group company was involved as the perp.

Let me get this straight. A Canopy Group company infringes an open source company's code, puts that code in their own product inappropriately, gets caught, and another Canopy Group company (that has been claiming for months that open source code isn't properly policed) says the case proves there is a problem with policing open source? Puh-lease.

They seem to have it backwards. Maybe they couldn't find any cases where proprietary infringing code was grabbed and ended up in open source code, so in their desperation, they settled for the opposite -- a case where one of Canopy's own companies, a combo proprietary-open source company, infringed open source code. And this proves open source needs to be policed? Maybe from them. It looks more like there is a problem with the Canopy Group. So, I agree. Call the police. They should definitely look into this.

Oh, that's not what they meant?

Some more details are emerging:

"MontaVista Software accused its competitor Lineo in April 2002 of selling software that originally came from MontaVista that had its copyright notices removed, said Jason Wachal, MontaVista's lead lawyer. MontaVista filed suit in federal district court in Salt Lake City. 'It appeared to us that Lineo, which was still in its original incarnation, was distributing computer software to its customers or potential customers that had code in it that appeared to be written by MontaVista but that had all of the MontaVista copyright information stripped out of it,' Wacha said. . . . The suit was settled in the third quarter of 2003, Wacha said. Terms of the settlement are sealed."

So this case didn't settle yesterday, or in October at all. According to Bloomberg News, it settled last month. But it surfaces now when Yarro, despite the court records being sealed -- meaning MontaVista can't say anything about the settlement -- nevertheless publicly tells the world all about it. He wasn't a party to this lawsuit, so why did the NY Times call and ask him about it? And more tellingly, why did he answer? And then the next day or so, SCO starts using it in its own twisted way. The whole thing does not pass the sniff test.

Normally, when court records are sealed, it's to keep the details a secret. Usually the defendant is the party wanting it kept sealed, so they don't have to tell the world they were guilty, even if they were. Yet Yarro comes out and gratuitously says that his once-Canopy Group company Lineo, the defendant, was guilty. Why did he not just say the court records are sealed and honor that? Lineo isn't a Canopy Group company now, so why would he be an appropriate spokesperson for this case now? That's what drew my suspicions in the first place. That and the fact that Google can't find any company called Hexamark Technologies, the alleged name of the alleged company in India that Yarro said Lineo outsourced the work to that he says caused the problem. Say, SCO's stock hasn't been going down again, has it?

The article goes on to quote an IP lawyer who opines that it was MontaVista that offered to settle, despite no such facts being in the public record (so how does he know, and if he doesn't know, how does he dare to say it?) in order, the lawyer speculates, to avoid having the GPL litigated in a court trial. MontaVista brought a lawsuit all about the GPL in the first place because it didn't realize it would end up in court. Maybe the lawyer was misquoted. It's possible. Then again, maybe he wasn't. If he wasn't, shame on him. And then in spite of himself, the lawyer ends up saying the GPL appears to be getting stronger "with each month and quarter that passes". No, son. It was always strong. It's just you guys who are getting weaker, as you begin to grasp what the GPL is about and what it was designed to do -- protect us from the SCOs of this world, which it is, despite SCO, Canopy, or the best efforts of all their ethically challenged FUD helpers.

A note about the SCO timeline

On February 26, 2003, Darl McBride and Robert Bench held SCO's First Quarter Financial Results teleconference, an mp3 of which you can listen to here. There are a number of points covered regarding the company's financials, and a lot of the call was spent on the SCOsource initiative. You financial wizards may find that part of the call more interesting than I did, but what struck me after I thought about it quite a long time was something that McBride said in the question-and-answer session. He was asked what his financial arrangement was with David Boies:

"With respect to the law firm, we're not speaking publicly about our arrangement there, but I can say we have business, uh, alignment...we have business interest alignment with respect to how we're going at it, so the law firm has an interest in what we're going out and doing, and so we think that's the right way to approach it."

Now, SCOsource was under way, but SCO has claimed that the March stock plan was set up prior to any litigation plans, and this call was at the end of February, so according to their timeline, no litigation was yet in the works. But if that were the case, what would the "business interest alignment" be? If they had already planned on suing somebody, the answer might be that Boies had been hired on a contingency basis to handle the lawsuit. But if there was no contemplated lawsuit, what is the business interest alignment? It makes you wonder what the contingency was in the contingency arrangement, when Boies was first hired in January. A percentage of SCOsource monies brought in? Or was a lawsuit expected from the start?

Obviously, only they can answer. But as to whether they already had in mind to sue, see what conclusion you reach from these segments of McBride's remarks:

"Now with respect to the majority of the customers as we've gone down the SCOsource path, you know, the first blush read on this that many of us have is, Gosh, this is a scary place to go. What are people going to say, when you step up and say, Hey, wait a minute, that's my intellectual property, you need to pay me some money? And we've been pleasantly surprised that the majority of the people we talk to are actually very reasonable about it. Most of the discussions we have are very friendly. And in some, many cases we have people that have seen the press releases, the stories in the press and they've called us up and said, Hey, I'm concerned that I might be infringing here, can I sign up for a program? And so what we've done is we've taken a very friendly approach to going out and enforcing our intellectual property in the marketplace."

No one asked him if that was truthful, of course, but was it? Another question arose on SCOsource and again he was asked if they were going to take a non-adversarial approach, and McBride said this:

"Again, the response there is the vast majority of the cases it's actually been a very cooperative, very friendly set of discussions, and we're in various levels of discussions with many, many companies right now. There've really been an isolated one or two cases where people have just told us to take a hike and in those cases, you know, we'll take a different approach. We didn't bring on one of the world's best law firms to have people tell us to take a hike, and then we take a hike. So, you know, in those cases, we'll look at them differently. But again, for the 95% plus case of the people and the companies we're talking to, we're getting very positive responses."

I'd listened to this tape before, but it wasn't until recently that it dawned on me that there is an unexplained "business interest alignment" if you consider SCO's official story of its timeline, and that the timeline itself regarding when a lawsuit was being thought of is impacted by McBride's reference to being willing to go after any recalcitrants who might not pay up, and that in February at least one or two had already told SCO "to take a hike."

As Flaubert said, "God is in the details."

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