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A Bit of the Blarney -- or Worse? -- About "Lost" Code
Saturday, October 23 2004 @ 03:38 PM EDT

It used to be funny pointing out mistakes in reporters' stories.

But when a reporter prints something that isn't just misinformed but hurtfully inaccurate, I think it's more serious. As you likely know, Maureen O'Gara printed a story about what allegedly was said in the last court hearing between IBM and SCO. That, in and of itself, is ethically problematic, to me, since the court ordered the transcript sealed. The source of her "information" would be whom, would you guess?

It wouldn't surprise me if IBM follows up on that aspect of the matter. I would.

Groklaw had eyewitnesses at the hearing. None of them reports seeing Ms. O'Gara there. Furthermore, none of them heard what she "reports" about IBM supposedly claiming not to be able to find code it was supposed to turn over. Let me repeat that. IBM never said anything like that, according to our eyewitnesses. I absolutely can tell you that the O'Gara story does not match what they heard. They also told me that the screen was placed in such a way that no one in the audience could see it. How then does Ms. O'Gara know what was shown on the screen?

Nor does it make any sense. For starters, IBM said at the hearing that they have produced all the code they have been ordered to produce to date. They have produced all released versions of AIX which they were told to turn over. That isn't even in dispute. The hearing was about whether IBM should now be required to produce more code, now that SCO couldn't find any infringing code in the millions of lines it already received. The judge hasn't decided that issue. Second, SCO's Third Amended Complaint has not yet, to my knowledge, been accepted by the court. Even if we posit that it will be, IBM has not yet even answered it, let alone been found in violation of anything having to do with it or even been accused of such.

I therefore conclude that Ms. O'Gara has been provided with some misinformation, or she has decided to spread a bit of the Blarney sua sponte.

Courts are not fond of Blarney, as it happens. Truth is not a joke to them. I don't know if SCO is behind this and if so whether it's because they see a spin opportunity because the transcript is sealed or for some other motive, so I won't speculate. I do know this: Ms. O'Gara attacks Groklaw at every opportunity, so she reads what we write. In this very article about the court hearing, she writes that our eyewitnesses were impressed by SCO's new lawyer. So she knew that she had available to her other sources of information on what actually happened in that court room. She did not contact me before writing her story.

But here is another issue: This inaccurate report was printed by LinuxWorld. They are responsible for publishing it. Unless they take immediate action to correct, I suggest the only conclusion I can reach is that they are hostile to Linux. If they are hostile to Linux, why would I care to read LinuxWorld?

Happily, Groklaw isn't dependent on ads or on any outside entity, so there is nothing to pressure us to tell you anything but the truth. We are noncommercial and have no ads to influence anything. One way the community supports our work is by showing up at these hearings, so we are not dependent on "reporters" who "report" on events they apparently did not attend and with an obvious, to us, bias. I don't know why Ms. O'Gara loves SCO, but to me it shows.

And at this moment, aren't you glad Groklaw had witnesses there? If Groklaw had not attended the hearing, Ms. O'Gara could write absolutely anything, and with a sealed transcript, who'd know the difference? As it is, Groklaw can stand up and say, No. We were there. It didn't happen that way.

Someday, this transcript will likely be opened to the public, and then we will be able to check for ourselves. In the meantime, you are free to choose who you wish to believe. I know who I believe, because they've reported from prior court hearings and been substantially correct. And Groklaw's eyewitnesses say: this report in Linuxworld doesn't match what they saw and heard and IBM did *not* tell "SCO Court It Can't Find AIX-on-Power Code" in the context of code they were supposed to have turned over.

I have not provided a link deliberately. If you wish to read her article, you can find it, I'm sure by a Google search or off of Slashdot, since they made what I consider the unfortunate editorial decision to give the story more widespread readership than it otherwise would have received.


LinuxWorld has put out a statement that Maureen O'Gara stands by her story and will seek to unseal the transcript, as well as presenting their view of matters at this point, Monday, October 25.

Update 2: It turns out that Ms. O'Gara apparently was not there, according to Groklaw's two eyewitnesses, both of whom looked at the picture she appends to all her articles, and the reporter there for the Salt Lake Tribune, Bob Mims, who privately informed Groklaw that he never saw her there that day.

To provide more information, SCO's Third Amended Complaint, which was not the focus of the discussion, was still, on the day of the hearing, sealed, meaning Ms. O'Gara couldn't properly have read it unless SCO lawyers or someone showed it to her, which would have been .... well, odd is the nicest word. There was no discussion reported by our eyewitnesses about any "missing code" on IBM's part. And further, one of our eyewitnesses saw a portion, a fairly large portion, of what was shown on the screen, because of his position in the seating area. It's a very small room. There were only about 30 people there, I'm told. What he saw was a list of all the AIX versions from the beginning, but IBM was only told to turn over the ones after the date in the May order. What was in red was simply the ones IBM was not told to turn over, hence the ones SCO at this hearing was asking for in addition.

I'm further informed that what IBM did say was simply that it couldn't find any other discoverable documents in the files of any senior management or the board of directors. IBM did not say, according to our witnesses, that it couldn't find any AIX-on-Power code, as was misreported by O'Gara. SCO mocked that (perhaps forgetting that Darl McBride also had nothing much, claiming not to use email much), and the judge did ask IBM to provide a sworn affidavits from top management and the board regarding what documents exist. And both sides were told to exchange privilege logs. That, at least, was reported correctly or at least in conformity with what our eyewitnesses reported to me. IBM did not tell the judge that they cannot find some code that SCO had demanded in discovery.

For historians, the lawyers in attendance were the following:

For SCO:
Shawn Escovitz
Fred Frei
Ted Norman
Brent Hatch
(and a host of others, but no sign of Silver)

For IBM:
David Marriott
Chris Kao
Todd Shaughnessy
(and several others)

For SCO, Escovitz spoke, with a short appearance by Frei. For IBM, only Marriott spoke.

Update 3: Also for historians, you can find an archived copy of the article here:

Ms. O'Gara also has an archived version here:

Part of what she wrote was:

Anyway, the sealed Third Amended Complaint has to do with SCO's contention that - to compete against Sun - IBM put SCO-owned SVR4 code in System 3-based AIX for its proprietary Power chip architecture - and one of the supposedly compromising IBM e-mails - that SCO just happened to read out loud in court the other day - suggests that IBM was conscious that it had overstepped the bounds of its Project Monterey contract with SCO, which was intended to produce only a version of AIX for Intel's Itanium chip (CSN No 564).

Well, during the Third Amended Complaint discussion, SCO's lawyer held up a piece of paper - that was duplicated on a projection screen that only the magistrate judge, Brooke Wells, could see - that listed all of the AIX code that IBM has and hasn't turned over to SCO. And SCO's lawyer pointed out that the only piece of code that IBM hasn't come up with - which was highlighted in red - was the AIX-on-Power code - to which IBM's lawyer replied that IBM "can't find it."

Shades of the Compuware suit. They "can't find it."

Makes one wonders whether IBM looked in that closet in Australia where it said a few weeks ago it just happened to stumble over the source code - the source code it swore - literally swore in court for two years - didn't exist - the code that it was supposed to produce during the court-ordered discovery phase of the suit that Compuware brought against IBM for, well, for stealing its source code.

IBM only managed to find the code after discovery had closed and the trial was about to start, a situation that it got its ears boxed for by the District Court for Eastern Michigan, which called its behavior "gross negligence."

Magistrate Wells has yet to cross that bridge, however.

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