For a really good laugh, take a look at the court filings, especially IBM's Memorandum in Support of its Motion to Compel Discovery. It appears that SCO is dragging its feet in the discovery phase of this court proceeding, and not providing IBM with even a single fact or line of code to back its allegations. Darl claims that SCO has provided over a million pages to IBM in the discovery process, but he fails to point out that none of it is responsive to any of IBM's questions.
More recently, SCO has filed documents with the court claiming that it has never accused IBM publicly, and yet Darl had this to say to
VARBusiness:
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It's that they've [IBM] taken a substantial amount of our code is what creates the battleground. It's interesting to hear Red Hat speak at financial conference yesterday and their comment is, 'We're really scaling Linux up. Linux is really growing up.' If you take IBM out of the equation, Linux would not be growing up, it would not be SMP-enabled, it would not be multi processing, scaling up to hundreds of servers. It is IBM that is enabling that.
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Although SCO's court filings assert that they haven't come up with the proper documents because IBM's document requests are “unduly burdensome,” Darl, in the same interview, reveals that he is actually stalling on purpose in order to increase the damages:
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We're sort of fine to let the AIX thing tick, because the longer it goes, when we actually end up in courtroom, we can go back to June 13, 2003, and add damages.
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In cases of infringement, the victim (I'm referring to SCO, here) must take action to mitigate damages. If you plagiarize someone in a book you write, then the person you've plagiarized can take action to make you stop selling the book and sue for past damages. But he cannot under any circumstances compel you to continue publishing plagiarized material and pay him a perpetual royalty. Yet that's what Darl expects to be able to do with Linux. Instead of revealing the alleged stolen code so that damages can be halted, he insists on collecting a license for every Linux distribution sold, retroactively, and in perpetuity. Instead of mitigating damages, Darl seems intent on maximizing damages, which (IANAL) the law frowns upon. In fact, nobody could say it more clearly than Darl himself:
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Our belief is that SCO has great opportunity in the future to let Linux keep going, not to put it on its back but for us to get a transaction fee every time it's sold. That's really our goal.
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If his lawyers haven't told him, they should: By law, he cannot compel the Linux community to continue using his allegedly stolen IP and demand a royalty in return. If stolen IP is in Linux, it is within the OSS community's rights to have it identified so they can remove it and be done with it forever.
SCO is being sued by Red Hat, a Linux distributor, for making threats against Linux customers, which is damaging to Red Hat's business. In court filings in that case, SCO claims that the 1500 letters it sent out warning of legal action against companies that use Linux were simply the basis of a “theoretical legal discussion.” Yet Darl again contradicts himself when he says:
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I would say we're suing end users. There are only two industries who use the term 'users,' computers and drugs. Not sure if there's a connection there. But the point is, we're not suing our customers. We are going after end users of Linux and I think there's a slight but significant difference there.
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Also, in court filings in the Red Hat case, SCO claims that the Red Hat case should wait until the IBM case is over, since the results of the IBM case will essentially decide the outcome of the Red Hat case. (In other words, if SCO can prove in the IBM case that Linux is tainted, then the Red Hat case should be dropped, since their threats... er, theoretical discussions, will be vindicated. And if SCO loses the IBM case, then Red Hat will be entitled to its day in court. Yet, once again, SCO's public statements are at odds with its court filings on its own web site where it claims that even if it loses the IBM court case, it will still go after end users of Linux, since the IBM case is a contract dispute and has nothing to do with infringement. (Sorry, I'll try to find a link.)
But it's not all bad. Darl, though he appears to have adopted a litigation business model, indicates that he's actually excited about producing and selling a real product:
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The core business, we think that's bottomed out and there's upside now with new products coming. We haven't had a new product in our OpenServer base in years and years.
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Funny, though, how, according to Darl, Linux would never be as good as it is if it hadn't stolen code from SCO's Unix, which hasn't been updated for “years and years.” Go figure.
Most recently, SCO has threatened to sue Novell using a contract Novell signed with Santa Cruz Operation, a company that still exists today and is currently known as Tarantella. (It's often referred to as “Old SCO” in order to differentiate it from the similarly-named SCO we're talking about.) It boggles the mind that SCO would actually try to pass itself off to the media that it, and not Old SCO (Tarantella), is a party to that contract! If SCO (new SCO) tries to make good on this threat and sue Novell over a contract that it isn't even a party to, then I think sanctions are in order, not just for SCO, but for its lawyers as well.
See that? You got me started!
Journalists at first took SCO at its word, regurgitating its press releases as factual news items. But the web of lies is beginning to fall apart, and (finally!) some journalists are even examining the court filings to try to gain a better understanding of the situation. Those that do express shock and utter dismay at having been manipulated. (Duh!)
And now the GPL is unconstitutional? And everything released under it for the past three years should be declared to be in the Public Domain? Without consulting the copyright holders?
How could it possibly have gotten this far?
My theory is that SCO never intended their claims to see a day in court. I believe that from the very beginning, this was a bid to get IBM to buy them out just to shut them up. When IBM didn't bite, they upped the ante from $1 billion to $3 billion, hoping to scare IBM into a settlement rather than to litigate a $3 billion court case. When IBM still didn't bite, what could SCO do? Up the ante to $3 billion
jillion gazillion? Even they knew that would look silly. IBM's heels were dug in, and yelling the threats more loudly wouldn't change that.
But something wonderful happened when they upped the ante to $3 billion. The price of SCO stock went up quite a bit. Since then, it's been a simple Pump-&-Dump stock manipulation scheme. Every day, SCO would come out with a more outrageous claim or a new threat against the OSS community, and each time the stock would go up. Surely, this was paradise!
But, aw, crap, they're running out of people to threaten (the world is only so big), and now they actually have to go through with the court case without a shred of evidence to back up their claims! Crap, crap, crap! Who could have possibly guessed that it would have come to this? Oh, why didn't IBM just buy out SCO when it had the chance? That was the original plan, after all. Oh, sure, it's nice to sell SCO stock at a surprising $20, when they were hoping for, at most, $2 from IBM's buyout offer. Yeah, it's nice to be stinkin' rich, but will it be worth pissing off two federal judges when it's all over?
I don't believe they have an end game to all of this. I think they're pretty much stuck, forced to conduct a lawsuit that was never intended to see the light of day, and forced to face their day of reckoning in the aftermath of these court cases.
When you practice to deceive...