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IBM Unseals Two Declarations
Monday, October 17 2005 @ 06:32 AM EDT

IBM has filed a Notice of Unsealing [PDF], which tells the court that it is unsealing an Amy Sorenson Declaration in Support of IBM's Memorandum in Opposition to SCO's "Renewed" Motion to Compel [Docket Nos. 219-220] [PDF], a motion SCO already lost, with unscanned paper exhibits, and a Declaration of Todd M. Shaughnessy in Support of IBM's Opposition to SCO's Motion for Leave to File a Third Amended Complaint [Docket No. 345] [PDF], another motion SCO lost, with paper exhibits galore.

We'll have to pick them up from the court, and I can't wait because there is an abundance of materials about Project Monterey, including the Joint Development Agreement between Santa Cruz and IBM, dated 1998. I just can't figure out from the Declaration why the last two exhibits were submitted.

Remember when Daniel Lyons at Forbes wrote that hilariously wrong article in August of 2004 about how SCO had a bombshell piece of news, that SCO was maybe really going to get IBM at last, that SCO was shocked, shocked to learn from some internal IBM emails obtained in discovery that SVR4 was used on Power? That they had learned that IBM lacked a proper license for AIX since 2001? It was the first time we learned about those "information wants to be free" internal IBM emails SCO kept leaking, until SCO's surreal and silly motion was denied.

Here's a snip of the Lyons article, just to remind you of his breathless excitement at his "scoop":

The nasty legal battle between SCO Group and IBM may soon grow wider, as SCO executives have dropped a new bombshell.

In private interviews during their annual user conference in Las Vegas this week, SCO executives said they have discovered that IBM lacks proper licenses for its Unix-based AIX operating system, heart of a multibillion-dollar business for IBM.

SCO alleges that since 2001, AIX has contained code for which IBM does not have a license. Moreover SCO claims to have found internal IBM e-mails in which IBMers acknowledge this shortcoming. . . .

Linux zealots will no doubt write off SCO's latest claim as yet another PR ploy. Maybe they would be right. Or maybe SCO is misreading IBM e-mails. Or maybe the e-mails were written by IBMers who didn't know what they were talking about. Or maybe--just maybe--SCO is onto something.

Or maybe not. Or maybe -- just maybe -- SCO pulled the wool over his eyes. While there are other possiblities, one thing is for sure. A bombshell it was not, although I think the stock went up when Lyons' story broke, if I recall correctly.

I love that part about "Linux zealots". Lyons loves to use that pejorative phrase. I have arrived at the opinion that the man simply hates Linux and anybody who likes to use it. But, is Forbes Mr. Lyons' personal blog? If not, are his personal opinions, hates and loves, supposed to show so blatantly? Just asking.

Of course, folks like me who know a thing or two about Linux were indeed right, as it turns out, and it was just a SCO ploy, one that was sure to fail, and so Mr. Lyons' inability to hide his frisson at the prospect of SCO prevailing over IBM was comical, then and now, utterly dashed by reality. Funny how those "Linux zealots" keep proving to be right. Is that the new definition of zealot, someone who is always right despite your fondest hopes otherwise?

The Lyons article is attached as an exhibit to the Shaughnessy Declaration, near the very end. And who else is there, right next door? I'll let you find out for yourselves. Yessir. Two peas in a pod, side by side, going down in history together as Exhibit 24 and Exhibit 25.

Of course, as we pointed out when the Lyons article was published, both Santa Cruz and Caldera knew perfectly well years ago that it was happening, and in fact Judge Kimball eventually ruled that SCO either knew or should have known about it, and he denied their motion for leave to amend. When you look at the incredible list of IBM exhibits, with many articles and papers available to any journalist bothering to research the matter on Lexis, it is hard to imagine how SCO thought it could get away with such a claim or why Lyons fell for it.

Mr. Lyons can't say I didn't try to tell him. As a matter of fact, I told the world back in July of 2003 that SCO knew as far back as 2001 that IBM had System V Release 4 code in AIX 5L, knew it worked on Power, and that they had no objection. So how could SCO make such claims? And how could Forbes print such an article in the face of so much evidence to the contrary, none of which appeared in the article?

I know, you'll say that they don't read Groklaw. My stars, children! They fairly dote on my every word. So that can't be it.

I'm thinking Lanham Act damages, of course. You can't blacken the name of a company, be wrong, and expect no consequences. I won't bother my pretty little head over it, I guess. It's their problem. I certainly did my part, even providing a history lesson just for Mr. Lyons' and SCO's benefit. I must say, though, with no false modesty, that if you compare our records for accurate research and reporting on the SCO case, I think my meanest critic would have to acknowledge I win. Is that why Lyons hates me? You think?

Yes, I know. A new masterpiece from the same trough has surfaced. I will have more to say about that shortly. I have a little surprise for Mr. Lyons. You'll never believe it, but the man got some facts wrong. Or maybe -- just maybe -- you would.

Meanwhile, here's the Pacer listing:

[527] - 11-Oct-05 - UNSEALED DECLARATION of Todd M. Shaughnessy re [345] Sealed Document filed by International Business Machines Corporation. (TAKE NOTE: This document is oversized. Only the main declaration is scanned into an image. The exhibits are not scanned. The complete document is retained in the clerks office for viewing.) - IBM

[528] - 11-Oct-05 - UNSEALED DECLARATION of Amy F. Sorenson re [220] Sealed Document, [219] Declaration filed by International Business Machines Corporation. (TAKE NOTE: This document is oversized and only the declaration is scanned into an image. The exhibits are not scanned. The entire document is retained in the clerks office for viewing.) - IBM

[529] - 11-Oct-05 - NOTICE of unsealing documents by International Business Machines Corporation re 527 Declaration, 528 Declaration, Court

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