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Darl Secretly Attended Novell's Brainshare; the Novell Strategy; and Legal Activity in Spain, Germany and UK, He Claims
Sunday, May 09 2004 @ 05:01 PM EDT

Three interesting tidbits from two interviews with Darl McBride. First, there is this article [sub req'd] currently on the cover of Fortune magazine, and there is a second interview in the Spanish-language El Pais in April.

First, from the El Pais interview, we learn that Darl went to Novell's Brainshare conference. Nobody recognized him. Apparently he slipped in after everyone settled into their seats and the program was beginning. He claims he almost asked Linus a question from the audience. He went, he says, because while you stay close to your friends, you want to stay closer to your enemies.

Second, we know now what the SCO strategy was in the SCO v. Novell slander of title lawsuit, and probably why they chose that kind of state contract action, and thus why they so much want it out of federal court. Both interviews indicate that the SCO plan in the Novell lawsuit was to have some ex-Novell executives on the stand to testify that they were at Novell at the time when the negotiations were going on and the contract was written up, both when Novell bought UNIX and when it sold whatever portion of UNIX they sold (SCO claims all of it, naturally), whereas the current Novell executives were not participants. They presumed that testimony would carry the day. Darl is one of the ex-Novell executives.

Of course, if Novell succeeds in turning it instead into a federal copyright question, that plan goes down the drain. There may be some issues about Mr. McBride's veracity if he does take the stand, too, I'm guessing, or his history of what BayStar called his "wild speech". Was that not the phrase they used? But it also indicates they know they can't prevail on the contract itself, and that they must rely on evidence outside of the documents as to what the intent of the parties was. You only need that if a contract isn't clear on its face. The Register suggests BayStar may be positioning itself to grab the IP for itself. Isn't that a tiresome thought? Funny thing. Nobody much wants to use SCO's UNIX anymore, but everyone and his monkey's uncle wants to litigate over it.

As you know, there is a hearing on the Motion to Dismiss and the Motion to Remand in the SCO v. Novell matter on Tuesday, before Judge Kimball, so it will be our first opportunity to see him in action. Pacer lists a Boies, Schiller attorney for the SCO Group, Scott E. Gant, from their Washington, DC office, as of May 5. He's been listed as part of the SCO team for the IBM case for a while, but he's on the Novell case too now. None of this planning and strategy will mean a thing if the Motion to Dismiss is granted or much if the Motion to Remand is denied, because then the discussion turns instead to whether the APA as amended is sufficient to meet the requirements for a copyright transfer, not what the intent of the executives was.

And third, there has been activity in Spain, just as we discerned from the German interview with Gregory Blepp we reported yesterday, but it goes beyond just Spain. SCO has attorneys at work in Spain, Germany and the UK, according to Darl, and they are in discussions with businesses and governmental agencies there, as well as with governmental agencies in the US.

First, from Fortune, Darl makes the claim about knowing what happened with the sale of UNIX, because he was there:

"By far the greatest potential obstacle for SCO is the astoundingly confusing September 1995 sales contract whereby Novell transferred some but not all of its Unix rights to Santa Cruz, and thence to SCO. If Novell's reading of that contract turns out to be right -- i.e., that Novell retains control of all the crucial rights SCO is now asserting-SCO's whole post-McBride business model is annihilated. . . .

"The other huge question mark left by the same contract revolves around the Unix copyrights, which are SCO's sole basis for demanding licenses from Linux end users. Notwithstanding the claims of the press release heralding the deal, a critical appendix to the contract states that 'all copyrights' are excluded from the sale. SCO claims that this was a typo -- a whopping typo, to be sure -- that was corrected in an amendment a year later. But the amendment itself is confusing and vague.

"The one advantage SCO might have in this absolutely critical dispute with Novell is that McBride was present when the sales contract was being negotiated -- though he happened to be on the Novell side of the table back then. By contrast, none of Novell's current top management were. 'I was in the staff meetings,' McBride protests. 'We [at Novell] were selling Unix. We were exiting the business. I've gone back and talked to all of those guys. We have statements from them. We know what they're going to say as this goes through.' (The two signatories to the contract declined to comment.)"

The second piece of evidence that this is the plan is the El Pais interview. I'll provide my translation, and I'll put the Spanish there too, in purple, so that if your Spanish is better than mine, you won't be hobbled by my skill set. Our thanks to Groklaw's jmr for spotting the article. In it, McBride repeats that plan, and he also reveals that he quietly slipped into Novell's Brainshare conference the first day just after everyone settled down and almost asked Linus a question. Here is that part of the interview:

"The conversation lasted for an hour and a half and took place in Salt Lake City, just after Mr. McBride's little incursion into Linux territory. 'Stay close to your friends, but closer to your enemies,' he explains with a smile. The head of SCO speaks slowly, choosing his words carefully, and dressing them up with metaphors, drawing on paper to help explain his points.

"La conversación dura más de una hora y media, y se realiza en Salt Lake City, después de la pequeña incursión de McBride en territorio Linux. "Tienes que estar cerca de tus amigos, pero más de tus enemigos", explica, sonriendo. El presidente de SCO habla despacio, elige cuidadosamente sus palabras, las adorna con metáforas y las explica realizando dibujos en un papel.

"McBride began the conversation by reflecting on the appearance of Linus Torvalds in the Salt Palace, Linus, the creator of Linux and number one enemy of Mr. McBride. He swears he was just on the verge of asking him a question himself.

"McBride comienza la conversación reflexionando sobre la aparición, en el escenario del Salt Palace, de Linus Torvalds, creador de Linux y enemigo número uno de McBride. Asegura que estuvo a punto de preguntarle algo.

"Question? What question?

"Pregunta. ¿El qué?

"I was wanting to ask Linus to explain to all the Linux users what are the problems they face if they start using Linux. And what is his opinion of those companies who tell their customers that there are no problems and say to just go ahead and keep using Linux? There absolutely is a problem, and we need to get it resolved, instead of pretending it doesn't exist."

"Hubiera querido que Linus explicara a los usuarios cuáles son los problemas a los que se enfrentan si implantan Linux. ¿Y qué opina de esas empresas que dicen a sus clientes "no hay problema, sigan utilizando Linux"? Sí hay un problema, y deberíamos resolverlo, en lugar de enterrar la cabeza en la arena."

Is that not creepy? Sneaking in like that? Here is what he says about Novell:

"What is going on is that Novell has tried to stand between us and the users. Novell says that UNIX belongs to them. But I worked at Novell when we bought UNIX. And I worked at Novell when they sold UNIX. I know what I'm talking about. I know the people who worked there at the time, the guys who signed the documents, and I know what they will say at the trial. They'll say, 'We sold UNIX.'"

"Lo que ocurre es que Novell ha tratado de interponerse entre nosotros y ellos. Novell dice que Unix es suyo. Pero yo trabajaba en Novell cuando compraron Unix. Y trabajaba en Novell cuando vendieron Unix. Sé de lo que estoy hablando. Conozco a la gente que trabajaba allí entonces, los que firmaron los documentos, y sé lo que dirán en el juicio, cuando testifiquen. 'Vendimos Unix', es lo que dirán."

And finally, about Spain and the rest of Europe and the UK, they have plans, all right, and Darl says just as they are have been talking to businesses and governmental agencies in the US, they have lawyers overseas to do the same there:

"Until now, most of our legal efforts have been concentrated in the US, but we have hired attorneys in Spain, Germany and Great Britain, and we are having discussions with organizations and businesses.

"Hasta ahora, la mayor parte de nuestros esfuerzos legales se han centrado en EE UU, pero estamos contratando abogados en España, Alemania o Gran Bretaña, y estamos teniendo discusiones con organizaciones y empresas.

"Q: You are going to sue governments, too? In Spain, as you must know, there are two [independent states?] communities (Extremadura and Andalucia) where there have been huge deployments of Linux.

"P. ¿Van a demandar también a los gobiernos? En España, como debe de saber, hay dos comunidades autónomas [Extremadura y Andalucía] que han realizado grandes desarrollos de Linux.

"Many countries do not wish to be on the wrong side of the Intellectual property issue, and they are asking us to inform them. We are talking with many and diverse governmental agencies in the United States, and we hope to do the same in Europe."

"Muchos países no quieren posicionarse en el lado equivocado de la propiedad intelectual, y nos están pidiendo que les informemos. Estamos hablando con diversas organizaciones gubernamentales de Estados Unidos, y esperamos hacer lo mismo en Europa."

He warns users that they should think carefully about SCO's claims, because they expect to win. It's an IP war, says McBride, with Linus the head of the open source community, and on the other side, McBride says he is the leader of the proprietary software and the lawyers' group. Linus' side may despise him, but, he says, his side feels very differently. Here is who he says is on his side, and yes, he includes Sun:

"But those who respect intellectual property rights don't hate me. A lot of folks in Hollywood and the music industry are on my side. Those who sell proprietary software are too, like Microsoft and Sun, and they don't hate me. And it's mighty rare that those who sell operating systems just give them away and stay in business long."

"Pero los que respetan los derechos de propiedad intelectual no me odian; mucha gente de Hollywood y de la industria de la música está en el mismo lado. Los que venden software para vivir de ello, como Microsoft o Sun, no me odia. Y es muy raro que haya vendedores de sistemas operativos que lo regalen y hagan negocio de ello."

Finally, the interviewer asks him if he'd do anything different, if he had the last year to do over again. Nope. He wouldn't change a thing. He says he is like a bullfighter. He'll keep fighting until he kills the bull. And he says IBM is lying:

"Q: IBM says it had no contact with you before you sued them.

"P. IBM dice que no tuvo ningún contacto con ustedes antes de la demanda.

"That is a total lie. There's no other way to put it. We spoke with IBM for two months before we brought the lawsuit. It's totally dishonest on their part to say we didn't speak with them. Two days before we filed the lawsuit, I got a call from an adviser to an executive at IBM. And I said, "Did you hear we have problems?" And he answered, "Yes, we have problems." They are lying if they say we had no contact with them."

"Eso es una mentira flagrante. No hay otra forma de describirlo. Hablamos con IBM durante dos meses antes de la demanda. Es completamente deshonesto por su parte decir que no hablamos con ellos. Dos días antes de que la demanda se presentara, recibí una llamada de una persona del consejo ejecutivo de IBM. Me dijo: 'He oído que tenemos problemas'. Y yo le contesté: 'Sí, tenemos problemas'. Están mintiendo cuando dicen que no contactamos con ellos."

No wonder BayStar is worrying. Speaking of Fortune, there was a very interesting article on what motivated the Microsoft-Sun detente. It says they were motivated by their common fear of Linux and their need to position themselves to deal with the power of open source.

I think we've seen in the last few weeks how valuable it is to have an international community reading SCO news in many languages. If you see an article in another language you think Groklaw should know about, please send it, along with your translation of the most important paragraphs. You can email me by clicking on the icon of the envelope, on the left.

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