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Where'd They Get That? - Part One
Saturday, April 07 2007 @ 01:26 PM EDT

Journalists around the world were no doubt startled to read in SCO's latest filing in the SCO v. IBM litigation that if a party in a case sends an early copy of a filing to a journalist, it is proof the two are working in collusion. Methinks there would be many coopted journalists by that logic, since it is not unusual for parties in litigation to send out significant filings, and SCO did it many times.

In fact, SCO not only regularly sent its filings early to journalists, it set up an entire website, sco.com/scoip, to display them all. In fact, when it first filed its complaint, the original one in state court, it posted it on its website, before it was filed, if I recall correctly, or at least before it was otherwise publicly available, and it was a copy that had and has no court filestamp. And SCO gave many public statements to journalists, who I'm sure are now wondering if they will be seen as SCO shills, if SCO's silly logic is believed.

I thought it would be fun to begin a new series, "Where'd They Get That"? in which I will carefully chronicle some obvious instances where SCO appears to have fed thoughts and documents to the press, starting with the year SCO chose, 2004. It stars, as you would expect, Maureen O'Gara and Daniel Lyons, Exhibit A and Exhibit B, but others will make cameos. Let's apply SCO's standard of evidence of collusion, and I think you will have to agree at the end of the series, that the dank smell of cynical phoniness is in the air. So, here we go. And do feel free to send me any examples you recall. And now, a little hypocrisy music, maestro, please.

We'll begin with one example of all the times that we know about when it appears SCO provided journalists with insider information. Let's start with a famous event, the Maureen O'Gara reportage on a court hearing she didn't attend, yet magically was able to report on both the contents of a sealed SCO filing *and* what was shown by SCO's lawyers on a projection screen only Magistrate Judge Brooke Wells and the lawyers were supposed to see.

Now *that's* reporting on a mystical scale. I know. It's a miracle! No, my friends. It's evidence that SCO likely fed her that information. Who else could or would have?

Here we go, then, our first stop on our magical mystery tour. Screenshots, please!

This first O'Gara article is still available on Wayback. It originally appeared on October 22, 2004. I took screenshots for you, first the title, showing the byline and the date of the article and the second where Ms. O'Gara amazes us all with her powers:

So that is the date and the proof that it is Maureen O'Gara's article, and here is one snip of what she reported:

Is that not a wonder? She tells us what is in a sealed document, that it is about some privileged IBM email. Privileged means that the public isn't supposed to learn about it. So does sealed. If you go to the court, they are not supposed to give you that info, so the logical source would be one of the parties. I think we may safely assume it wasn't IBM, and it would be improper for SCO to release it.

How did she know, then, that there is "supposedly no hint of attorney-client privilege" to the email? That was SCO's claim. How did she know that the Third Amended Complaint (this is the one SCO was eventually not allowed to file) was about SCO alleging that IBM had improperly put SVR4 code in AIX for Power? And how did she know the contents of an email that SCO lawyers just "happened to read out loud" (love that part) in court at an earlier hearing, when that transcript was sealed by the court because SCO's lawyers improperly, or by mistake ha ha, read that email aloud, and when O'Gara was not at the hearing? Somebody had to fill her in. It wasn't Jiminy Cricket.

And how did the gifted O'Gara know what was shown on that screen? She didn't attend that hearing either. Even if she had, she could not have seen what was on that screen, because it was set up to exclude the public. We know she wasn't there, because our reporters were, and I also know it from a conversation I had back then with the publisher of Sys.con. I also asked Salt Lake Tribune reporter Bob Mims, who did attend. She definitely was not there.

In fairness, she might have learned the contents of the proposed and sealed Third Amended Complaint from that other artiste of prediction or divination or, by SCOlogic SCO media-spin partner, Daniel Lyons of Forbes, but I am getting ahead of myself. But what about the rest? Who told her these things? I am sure it wasn't IBM. It obviously wasn't the judge. Could it be SCO who leaked these juicy bits to the media???? And yet it faults IBM for allegedly sending out *public* documents to journalists, documents they could get from the court anyway?

Isn't this fun? Educational too. In our next in this series, Mr. Lyons stars, the journalist who knew before I did and without any Pacer notation at all that SCO was allegedly trying to subpoena me. How does he do it? I'm sure it couldn't be IBM that told him that. No one but SCO could know about an unserved subpoena.

What?!! SCO is talking to the press? Giving them insider info? After Judge Wells wanted the parties to be more restrained? Could it be such goings on are actually happening in Utah? I'm shocked, shocked, I tell you, to learn of this beautiful friendship. And by the way, did Miss O'Gara's reportage sound to you just a teeeny weeeeeny bit biased? Even in such a short clip? That is not possible, since SCO said it is not acceptable for a journalist to have a point of view. Perhaps the problem is she has no gatekeeper to "monitor the reliability" of the contents, as SCO put it in the filing. Now that I think of it, neither does Lyons have a gatekeeper on his blog.... Maybe that's because it's a blog. Wait. Isn't Lyons the guy who said blogs were from the devil or something? Ewwwww. There's that smell again.

Uh oh. SCO needs to get on this problem of journalists having their own ideas and actually writing them for people to read this exact minute. But I suggest SCO apply its proposed media rules across the board. After all, we all know SCO is nothing if not the soul of fairness and balance.

Now, let me draw your attention to SCO's Exhibit 23, which SCO tries to use as one proof of collusion between IBM and me. Please note a detail SCO obviously missed. I wrote in the article which SCO used as an exhibit that I had read in News.com about a new IBM filing that I didn't have but which I'd try to get it for us here at Groklaw:

I will have the actual documents available shortly, but News.com is reporting that IBM is seeking a declaratory judgement.

What does that prove? The fact that News.com had it first shows you that I wasn't a favored journalist by any means, if they had it before I did. After reading about the filing, I obviously contacted IBM or the journalist or both or a volunteer, for that matter, and was able to get the document. I don't recall which, because I didn't keep track of such picayune details. I've tried to reconstruct but I can't find anything, so if you remember anything, let me know. Not that it matters, but I like to answer all of SCO's FUD that we can.

But the most important point is that I didn't get it first. SCO is just not good with details. But let me state forcefully that there would be nothing wrong with IBM sending out copies of important filings or filling requests for them. These are public documents, after all. On a few occasions, it may have done so in the early days, but certainly not often and not typically. I usually got overlooked, though. I do remember complaining at least twice to their PR guys, because I just couldn't seem to get on the list for press releases or anything at all. I arranged with a fellow journalist to send me whatever documents he received from SCO and IBM and Novell, and Groklaw set up the system of volunteers going to the court to pick up filings in person and then digitizing them for us.

But journalists do contact parties to litigation. Of course they try to get the filings, the sooner the better, so they can scoop their competition, and of course they write about what they see in legal filings. That is what journalists do. There could be collusion in some cases, but sending out a filing isn't evidence of it. It's just journalists doing their jobs. And let's be honest. It was SCO, not IBM, trying to sky-write its message across the country and the world.

Do I think what SCO apparently did with O'Gara was improper? Personally, I do. But if SCO had merely sent her a filing that was a public document anyway, which in fact SCO did many, many times, so she and other journalists would have time to write about it sensibly, that is everyday journalism.

Those of you who have been here throughout the story will recall that in fact the court upheld the confidentiality of those emails, O'Gara's snarky innuendo otherwise notwithstanding. So to me it was improper to reveal anything about confidential materials. I think it is wrong to leak information regarding a *sealed* document, not a publicly available one, and information about what was said in a *sealed* hearing and information about emails designated by a party as confidential and improperly read aloud, something the judge told them not to do. As a matter of fact, Groklaw's reporters were at the hearing where SCO lawyers just happened to "goof" and read that confidential email aloud. They actually tried twice, but the judge cut them off. I knew then and I know now what the email contains, but I refused to report it, even before we learned the hearing transcript was ordered sealed, because I knew it was improper. If a court filing is sealed or marked confidential, that's how I treat it, out of respect for the court and the law. Yet here it was, being reported in the press by others, not entirely accurately in my opinion, either.

So, the question is, where'd she get that?

She wasn't the only one. Take at look at this coverage of the hearing, reported by Internet News' Jim Wagner:

The copyright-themed trial between SCO Group (Quote) and IBM (Quote) took another twist as the presiding judge ordered both sides to provide information previously considered privileged,SCO officials said Tuesday....According to a SCO official, SCO's lawyers argued that the two hadn't handed over the documents originally sought regarding IBM's Linux activities. The lawsuit's origins are part of SCO's claim that IBM broke a contract by improperly including SCO's Unix intellectual property in AIX, which is IBM's own version of Unix....

"One of the things IBM mentioned in its arguments was that it handed over everything that was not privileged and what was privileged, they didn't share," said Blake Stowell, SCO spokesperson. ...IBM officials were not available for comment at press time....SCO filed an amended complaint against IBM for the third time on Oct. 14. Though the filing is under seal, or not for public viewing, an observer in the court said some of the filing's claims were discussed in Tuesday's public hearing.

The amended complaint refers to Project Monterey, a joint project between IBM, SCO and Sequent to build a 64-bit Unix-based operating system, the observer said.

IBM reportedly scrapped the project in May 2001, but not before SCO shared "valuable information and trade secrets with respect to architecture, schematics and design of UnixWare and the Unix Software Code for Intel-based processors" with IBM engineers. The original filing from March 2003 maintains IBM had no experience running Unix on an Intel chip before partnering with SCO.

"SCO's alleging that IBM, during its work on Project Monterey, allegedly took some SVR 4 code, that was only intended for Project Monterey in order to help create this operating system for the 64-bit Itanium processor, and took that code and put it into AIX for PowerPC," an observer at the trial said.

As you can see, this reporter was fed a great deal of information about the contents of a sealed filing and the hearing about it, even apparently quoting from the document. Part of what he was fed came from Stowell, and the rest from "an observer" in the courtroom who mystically, if it were not a SCO person, knew the contents of the sealed document. Of course, in the end, all the allegations reported so faithfully here bit the dust because SCO's motion was denied.

Now, this reporter isn't a front for SCO. We might have a discussion about O'Gara and Lyons, but I don't believe for a second that Jim was in any way trying to be used. He was just reporting what he had, and IBM, you'll notice, wasn't telling him anything, which was typical. Nor did he quote at all from Groklaw, despite our voluminous coverage about the facts underlying this motion and how stupid it all was, and time proved that our coverage was more accurate than Jim's. But that's because Groklaw doesn't rely on anything but our own independent research. We've found it to be the most reliable source.

... to be continued...


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