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SCO Tried to Gag Groklaw in 2004
Saturday, April 28 2007 @ 07:57 PM EDT

This is a sorry tale for those of you who think the First Amendment to the US Constitution and freedom of the press actually mean something important. It's a story that I've just learned about myself. But it's a true story. SCO tried to gag Groklaw back in 2004.

It wanted Groklaw placed under a gag order, so it couldn't cover the SCO litigation any more. It also wanted Linus Torvalds, Eben Moglen, and Eric Raymond to be prevented from commenting publicly about the litigation.

I just found out because IBM has just filed its opposition [PDF] to SCO's motion to intimidate Groklaw or whatever that motion is literally called, about SCO wanting discovery in the IBM litigation opened up again to include my deposition taken in the Novell case despite discovery being over for more than a year in IBM. Oh, and there has been no subpoena delivered and no deposition. And IBM now clearly tells the court this about Groklaw and the proposed deposition:

More than a year after the close of fact discovery, SCO seeks to take the deposition of a third-party, Pamela Jones, whose proposed testimony SCO has not shown (and cannot show) to be relevant to this case. SCO does so despite the fact (nowhere mentioned by SCO) that the Court already ruled that it would not entertain a motion to re-open deposition discovery....

In support of its motion, SCO insinuates that there is an untoward connection between Ms. Jones and IBM.... This is false. SCO offers no support for its accusations, and there is none.

None. Get it? None means none. False means false. Then it mentions a letter, attached to IBM's memo, a most remarkable letter [PDF] from Darl McBride's lawyer brother, Kevin McBride, to an IBM attorney, Todd Shaughnessy, dated February 11, 2004.

IBM talks about the letter, when making the point that SCO could have deposed me back when discovery was still open and it never tried, despite Groklaw covering the litigation among other issues since the spring of 2003. IBM writes:

SCO has been falsely accusing IBM of being behind Groklaw from essentially Groklaw's beginning. (See, e.g., SCO Letter dated February 11, 2004 (accusing IBM of providing funding to Groklaw)(Addendum C hereto).)

The context for the letter was that apparently the Magistrate Judge Brooke Wells had expressed that she was concerned about all the PR being fed to the media. Pop quiz: which litigant might she have meant:

a) "We have a mountain of evidence" SCO?

- or -

b) "We have no comment" IBM?

So SCO sent a letter about the possibility of a stipulated gag order. As you may have observed, when SCO is criticized, its response very often is, "You're another." And the letter seriously suggests that Groklaw should be gagged. And Linus and Eric and Eben also. Why should we all be gagged? Because in SCO's mysterious mind, IBM must be funding all of us in some ways it couldn't quite figure out, but to them we were all IBM puppets, so if SCO had to stop talking, then so did we. Linus Torvalds, folks. An IBM puppet? Puh-lease.

In the case of Groklaw, SCO's story goes, someone told SCO that Groklaw was "conceived and launched by" ibiblio:

Of principal concern is the Groklaw website. It appears that Groklaw was conceived and launched by ibiblio.org in response to SCO's original filing against IBM.... We have been told that IBM is a sponsor of Groklaw and/or its parent organization ibiblio.org. If so, the Court has a right to know this in considering the scope of any order regarding litigation-related public statements in this case.

So there you have it. The devil made me do it. Or was it the Easter Bunny? I forget. As for Linus, SCO said he should stop commenting on the litigation because he was:

... employed by the Open Source Development Labs ("OSDL"), which is funded principally by IBM. Because of Mr. Torvalds' position in the technology world, his comments about SCO's evidence in this case are given particular weight in industry and popular press.

Well, we certainly can't have someone who actually knows who wrote Linux and what is in it and who has been directly attacked by SCO repeatedly in the media talking about this litigation or defending himself!

That is what the letter says. I know. Obviously, nothing happened, and we're all still kicking and still talking. What is the why of all this? I think it's simply this: SCO couldn't accuse IBM of talking to the media, because they were very restrained, so SCO cooked up these allegations against us passersby. For sure that is all I am. If SCO had to stop commenting, its plan was that everyone who knows anything about the facts be gagged. Of course, IBM tells the court, in footnote 6, ibiblio is "a research project, which has hosted many websites." Including SCO documentation, actually, as I earlier pointed out. As for OSDL, IBM tells the court:

During this lawsuit, the OSDL has been comprised of more than 75 members, including SCO.

So, here's a headline for any gullible journos out there:

PJ secretly funded by SCO

No? Too silly? But IBM said it. Will you now write articles about IBM secretly funding Linus? [ Update: Unbelievably, someone actually did.] Don't you have to report without bias what parties to litigation tell you? I pointed out the flaw in so-called "unbiased" reporting back when SCO was falsely accusing the Linux community of MyDoom:

Some in the press covered it straight-faced, as they always do when Darl says anything.

If they were covering Jesus Christ's trial, it'd be:

A spokesman for Pontius Pilate informed the Jerusalem News that the accused threatened to overthrow the government and replace it with his own kingdom. "We took a strong stand, because the threat was both broad and deep," said Marcus Spartacus, from Pilate's office. "The sedition laws are clear and will be enforced vigorously."
A lot of the story gets missed, you see, when you only quote spokespeople for one side. Even if you get quotes from both sides, it's still not the complete story. Reporting is where you find out, when possible, who is telling the truth by digging for facts, not just scribbling down quotes. Otherwise, you could just miss the story of the century.

Just kidding, but do extrapolate the next time SCO tells you nonsense. (You, too, Wikipedia.) Or gets a friendly journalist to write nonsense so you can pick up the story and run with it. As you may remember, it was Dan Lyons of Forbes who first wrote about Groklaw and ibiblio. That is where the insinuation began. So much for his research skills, as I'll demonstrate in a minute, not to mention the topic of bias. I hope some of you out there will be thinking deep thoughts. Like the Bible says, the heart can get better by deeply reflecting on how far we might have strayed from true north.

So SCO tried to gag Groklaw beginning in 2004. It moved on to false insinuations to journalists, ugly innuendo during a conference call about me and Groklaw, having friendly journalists with PIs try to dig up dirt on me, a massive vilification astroturf campaign all over the Internet, and then to intimidation with their recent motion. Well, I'm gagging, all right, but not in a good way. And certainly not in the way SCO hoped.

I will respond like this, seriously for a moment. This is America. I am an American citizen. I was born here, born to certain rights as my birthright. I'm allowed to cover this litigation without being harassed and intimidated or threatened or gagged. I'm allowed to present facts that disprove SCO's public allegations. I am allowed to write what I believe is the truth, and I'm allowed to present research about the allegations. I was born with these rights, and they are precious to me. I also have rights as a journalist. This isn't Malaysia or Russia, where journalists are muzzled or end up suddenly dead execution-style in a gutter somewhere. Is it? What is wrong with these people? Didn't they study about America and freedom of speech and of the press in civics class? There is a long tradition of freedom of speech here, and SCO would like to deprive me of it. At the least. Are these foundational American values not precious to SCO?

You smile. Well, I digress. Of course, nothing like what SCO wanted happened. I never even knew of this attempt to shut Groklaw up, other than I do recall some threats posted on SCOX Yahoo! by SCO supporters and some comments here too, IIRC, predicting that Groklaw would be muzzled. I wonder if they knew, what they knew, how they knew or was it just an uncanny guess?

Where to begin to refute these lies? SCO's allegations are so silly, one is tempted to say nothing. But let's do anyway, to set the record straight, particularly for ibiblio's sake. As I've written earlier, SCO uses ibiblio too. Let me provide some additional facts to put some meat on the bones of why what SCO claims is false.

Groklaw Began on Radio UserLand, Not on Ibiblio

Groklaw didn't start out on ibiblio. It started on Radio UserLand in May of 2003. I had been trying out a few kinds of blogging software for a few months, because I was trying to learn how. A lawyer interviewed me for an assignment doing his website and he used Radio UserLand software, so eventually I settled on just Radio UserLand and let the others go. Radio UserLand is commercial blogging software that isn't funded by IBM and has no connection to ibiblio. Groklaw's still there, the early days of Groklaw, still on Radio UserLand, thanks to the Internet, which never forgets, so you can prove to yourself that this is the truth.

Just go to Google and type in Groklaw, and then look on the list for radio.weblogs.com/0120124/ or search for it that way, by the url. That's Groklaw, the Teenage Years. Joking. You'll see, though, that it is true -- that is where we started and Groklaw got famous on Radio UserLand, not ibiblio. So I guess Dave Winer is to blame for Groklaw. Kidding. I've never met him, so don't send him a subpoena either. He just designed the software that made it possible for me to do Groklaw.

Here's the first interview I did, in July of 2003 for Linux Online, so as you can see, Groklaw was popular already, before we went to ibiblio. In the interview, I mention Radio UserLand and the fact that the day before Groklaw had more hits than any other blog on Radio. And you can look at this mention of Groklaw on Slashdot in early September of 2003, and if you mouse over the GROKLAW link, you'll notice that it links to Radio UserLand, not to ibiblio, to http://radio.weblogs.com/0120124/, specifically to this article.

Slashdot and the blogosphere made Groklaw popular long before we moved to ibiblio. After Slashdot highlighted that article, we really grew fast. Unless IBM owns Slashdot, they had nothing to do with our success. Joke. Joke. IBM doesn't own Slashdot. I want to head off any new subpoenas to stunned journalists by the humor-impaired in Lindon.

I used to think SCO was just paranoid. Or not the sharpest knife in the drawer. Now I'm thinking they are more cunning, in a small town kind of way. Let me tell you the rest of the story, and then you can decide.

Here's a page, the final entry on Radio UserLand in November of 2003. See where it says, "Groklaw has morphed into a website" at the top? And the link on the left marked, New site? That's a cluebat that we didn't start on ibiblio. And if you look at the dates by looking at the archives, you'll see that we started in May of 2003, not March, when SCO filed its lawsuit and the first article wasn't even about SCO. That you can only see on our archives here, the part about the first article, because on the old site, everything was done by me by hand, pre-Mathfox. And I didn't think of doing archives at first. You can see that by the date of the archives page there, June 24, 2003. And I just noticed that I forgot to close the tag on the url telling people where to find the new site on the last day on Radio UserLand. Oof. I know. So professional, so IBM.

: )

There probably is a way to do archives inside the Radio UserLand software, but I didn't know how to do lots of things back then. I notice I stopped trying to do the archives there in August. My readers taught me HTML, by the way, little by little, what little I know. But here's the very first article on Radio UserLand, May 16, 2003, about David Boies and Grokster. Sigh. There were other articles not about SCO also. The idea was to explain legal news. But let's face it: SCO is entertaining, the topic is riveting, and I thought it would be fun to write about, and you seemed to enjoy it, so I did it. Eventually I saw that we could actually innovate in doing research online, applying Open Source principles to distributed legal research. That is the conspiracy. To try something new and put all our brains together and see what happens. My idea was that by covering a lawsuit from more or less beginning to end, you'd be able to understand how the law works, so you could contribute meaningfully. I had no idea how long this one would take or I would have picked something else, maybe. I also had no idea what I was getting into, obviously. In that first interview, I said this:

The IBM case depends so much on what the contracts actually say, and apparently there are thousands of them, that I don't think anyone, except maybe IBM, knows at this point what will happen for sure.

We don't know yet exactly what it is that SCO registered a copyright for. We also don't know yet if the registered copyright is valid. Just registering a copyright doesn't prove it is valid. A court decides that. I did send an email to SCO's people asking them about the copyright, but they haven't answered me yet.

I also asked them about their contributing Unixware code to IBM's AIX 5L, the successor to Project Monterey, which I wrote about on Groklaw. I asked what code they had contributed to IBM and how they could know for sure it wouldn't explain any identical code. They didn't answer that question yet either. When they do, I'll be better able to evaluate. But I don't think anyone knows for sure how this will turn out. We don't yet have all the facts.

There are two fronts to this battle. The IBM side, which is so far strictly a contract and tort war. Contracts trump IP laws, generally speaking. The second side is the copyright-license fight against users. It's two separate analyses.

I just don't know about the IBM side. I have confidence that they intend to deal with the SCO issue successfully, one way or another. SCO is like a mosquito in their bedroom. You just have to get it before you can go back to sleep. I notice they don't act scared.

My personal opinion is that the GPL is vital and determinative on the second front and helpful on the first. But I'm not a lawyer. It's just my opinion, kind of like if we were sitting around after dinner and you asked me what I think. I have yet to see anything on SCO's side that would make me believe they are going to prevail, but there is a lot we have not seen. I know Boies would never, ever plant a flag in the ground unless he had something to go on. It may be a stretch, but it'd be something. The thing is, because he isn't a geek, he could be mistaken. I don't believe, either, that he'd knowingly assist anything like a pump and dump. If he were not involved, I'd be snorting. I guess that's probably why they hired him.

I started out thinking that SCO might have some legitimate contract concerns, as you see. Go figure. So much for bias. You will notice that I tried to get SCO to comment and answer my questions, but they ignored me and never even replied. So much for bias on my part. And by the way, for many long months, every single article on Groklaw had a comment section set aside for SCO folks to use to comment and say whatever they wished. They never did. I also in an interview publicly invited SCO to write an article for Groklaw if they wished. They never did that either, not that I was expecting them to. Instead they falsely accused Groklaw of bias. Frankly, if I didn't have an opinion by now, after more than 3,000 articles reflecting all our research, something would be very off. But I started out with an open mind. And I have always tried to be fair to SCO. I don't think they can say the same.

I am very, very proud of the work we have done here on Groklaw. It broke new ground in research and in covering legal news, and I believe it was and is a worthwhile project. It's part of what I see as vital in an Internet age -- that the tech community gets involved so it can help the lawyers get it right in cases that involve tech.

While you are there on the old archives page on Radio, look up at the top. See a notice about morphing into a website? Nope. How about on the left. See a link to the new site? Nope. That's because we were not on ibiblio then. Duh. After we moved, then Mathfox wrote some code that archives for me automatically just the way I wanted it to be. Whatever would we have done without Mathfox? I shudder to think. And how hilarious it is to look back at my amateurish beginnings. Actually, it brings back a lot of happy memories. But I do think it's more proof positive that IBM couldn't have been involved. Nothing they do is amateurish. That is *my* contribution. IBM didn't have a thing to do with starting Groklaw, and neither did ibiblio. I just felt like doing it. So I did it. That's it. A scoop for ya.

SCO could have done that research itself, don't you think, check its facts before making wildly false accusations? A simple Google search would do it. Is it that they don't know how? Or is there a cunning side to this? Let's continue.

We actually began to plan to move over to ibiblio late in September or early October, I believe, but for some weeks I kept it up on both, putting the articles in both places, but asking everyone to comment only on the new site. I did both like that at first, partly so we didn't lose our readers, partly because it took time to move everything over, but also because we didn't know how to do RSS feeds in Geeklog at the time, and it's built in to Radio UserLand, and from the beginning a lot of our readers used RSS to keep up with Groklaw. They still do. So I went to that extra trouble for them. I loved that Radio UserLand experience, by the way, and only Groklaw's growth forced us to leave, because after we started getting over a hundred comments per article, the software got slow and we even lost comments. Sometimes articles. Man, was *that* exciting! Some sleepless nights there. They've probably fixed that by now, or maybe it was all me, but at the time, I didn't know what to do, so someone eventually suggested ibiblio, and he asked if we could move there, and ibiblio said yes. At the time, I'm embarrassed to tell you, I didn't know what ibiblio was, that it is the public's digital public library, but happily a reader knew, and he arranged it. I never approached ibiblio myself. I didn't know who contributed to it. And no, he's not an IBM person either. It was all done in public. Google is your friend.

Here's our letter to Darl which we as a group wrote on Radio UserLand in public which you can see if you read the comments there. We wrote it together in the comments section. The date is September 21, 2003. Everyone presented what they thought should go in the letter, and then I'd write up drafts incorporating the research and the points.

It was doing that letter that convinced me that we had to move, because of all the comments helping to draft that letter, and how hard it was to work as a group in that software, and so first we decided to accept an offer from a reader to move to his server. But we about melted his servers, and so we had to find another place around the time we sent the letter to SCO in September of 2003. I remember that we were in transition, because The Inquirer posted the document for weeks, specifically so we wouldn't be swamped with traffic we couldn't handle, and they linked to www.groklaw.com, which is the old site on Radio UserLand. Go to Google and type in www.groklaw.com, and you'll see that you find a final draft of the letter near or at the top. See in the string the date, September 20, 2003?

On that same page, you will see why we were worried about traffic. When we first left Radio UserLand, we moved to a server a member offered. Just his own server. But we had so much traffic, his server couldn't handle it, so we were looking for another place. You can see that in the entry at the bottom of the page, where I thank him for hosting us a while and announce the new site.

When we moved to ibibio, we had to change the address to www.groklaw.net, because they only accept noncommercial sites, and they asked me to change it to reflect that. I didn't even know .com meant commercial. That's how much I didn't know. Groklaw.com became just a redirect at that time. That's why the letter to Darl is now on ibiblio, on a permanent page, dated September 20. But you can see that on the Inquirer, it actually was published the day before, as a scoop for The Inquirer for helping us. The press release we sent out with the letter didn't go out until the next day. Notice it says www.groklaw.com, which is an address we never used on ibiblio.

Isn't it crazy to have to document all this, because of SCO's accusations? My, they are annoying. But I'm doing it so you can see that it is easy to prove that Groklaw certainly wasn't conceived or launched by ibiblio. It means that when Forbes published Lyons' attack on Groklaw, alleging the ibiblio-IBM innuendo, Groklaw had literally just arrived on ibiblio's servers. That article was published December 16, 2003. We finally arrived on ibiblio on November 22, 2003, so that's less than a month. So skip any ibiblio subpoenas, boys. The information is readily available to you, and it always was. I told the world there was no IBM connection back in March of 2004, when SCO's then PR head Blake Stowell channeled Dan Lyons' meme about me living, he thought, in White Plains (near IBM, wink wink) meaning there was a connection. Nope. And I also pointed out that ibiblio hosts a lot of people, because by then I knew. So SCO had a good reason to know better than what they were saying. Anyway, no secret contributions to ibiblio by IBM, even if that were true, which is isn't, had anything to do with Groklaw's birth or anything to do with Groklaw, period. Neither IBM nor ibiblio were involved in starting Groklaw, conceiving it or launching it.

The discerning reader will perhaps note that the interview with Blake Stowell was published on February 27, 2004, the same month Kevin McBride sent that phony February 11, 2004 letter to IBM about its "concerns" about the media. What might that tell us? Maybe that SCO was gaming IBM? You think? How about deliberately defaming me?

[ Update 2: Groklaw member Boundless reminds me that IBM answered [PDF] this Kevin McBride letter on February 12, 2004, the very next day. In part, the letter said:

This responds to Kevin McBride's letter to me dated February 11, 2004.

As I have advised Kevin, IBM is generally agreeable to an order limiting the parties' public statements regarding the litigation, as suggested by Judge Wells. Based upon SCO's statements in chambers on February 6, 2004, and Kevin's statements to me, however, it appears that SCO is not agreeable to the entry of such an order. If that is in fact SCO's position, then we would appreciate your just saying so without invoking misplaced concerns of conspiracy between IBM and third parties. Contrary to Kevin's sugggestion, which is entirely unsupported, IBM is not causing any third parties (including those listed in Kevin's letter), through "funding" or otherwise, to make statements on its behalf about the litigation.

We understand that SCO is concerned about the public's criticism of its case. But there is nothing we can do about that, especially since, as you know, we believe SCO's allegations are meritless and public criticism deserved. Unless SCO is prepared to withdraw its claims, the best way, in our judgment, for SCO to avoid public criticism is to cease making public statements about its case. The criticism SCO seeks to avoid directly derives, after all, from its own public relations efforts.

Yet, within days of learning that I was not connected to or funded by or being used by IBM, SCO's Blake Stowell was insinuating again to the media that I was what IBM had just clearly told SCO I was not.]

I paid a yearly fee myself for the privilege of blogging there on Radio UserLand, a modest fee, but still, it was I who paid it, and if Groklaw hadn't grown so huge, I'd still be there, for $40 or $50 something a year for bandwidth. Really. Groklaw didn't need financial help then in any way from anyone. I just did it in my spare moments, like most bloggers, when I began.

[ Update: I just found my first receipt from Radio UserLand. I bought it on February 20, 2003. $39.95 for a year. And all the bandwidth you could eat. That is prior to SCO launching its litigation against IBM, I'd like to point out, so it's one more bit of evidence that I didn't start Groklaw in response to SCO's lawsuit or with the purpose of "attacking" SCO.]

There are more stupid details to respond to in that awful SCO letter trying to gag Groklaw, but I'm tuckered out. I'll swing back by in time, I expect. But this is the answer to the ibiblio accusation. Again.

But stop and think about this for a second. SCO actually wanted to shut Groklaw down or at least to prevent it from covering the SCO litigation. And they were willing to try to reach that goal based on false accusations a child could use Google to disprove. What does that tell you about SCO? And that letter wasn't written by SCO's CEO. It was written by one of SCO's *lawyers*.

One final point, though. They also allege that Groklaw had someone at a hearing in February of 2004 sending us commentary from the courtroom. Here's what Groklaw published the day of that hearing, and as you will see SCO is simply wrong:

Cody Hilton sends us this first quick word:
I just got out of the hearing. The outcome is Judge Wells will be issuing an order within the next week. She wanted to take her decision under advisement.

Some quick observations. Mr. Marriott argued for the side of IBM again and Mr. Weiss argued for SCO. Counsel were in chambers for 28-30 minutes. IBM stated that SCO had not complied with the Judge's order for discovery. SCO has said they have and now want their motions granted. Darl was not in attendance.

Notice our eyewitness said that he had just come "out of the hearing" and that it was over? I wrote that it was our first word from the hearing. You may judge for yourselves, then, the level of SCO's accuracy.

IBM ends the memorandum in opposition like this:

Finally, it is difficult to see SCO's motion as anything more than an effort to intimidate an individual with whose opinions SCO disagrees and to support SCO's continued efforts to reopen discovery.

That's legalese for Groklaw is a wookie.

That is what Groklaw is. But *I* am a human being. When you say untrue things about me, it hurts me. Just so you know.


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