Sunday, September 16, 2007

Honest Mistakes Happen

Being a Linux user and supporter I've been watching the SCOX litigation train wreck unfold, all the way up to last Friday's Chapter 11 announcement. This filing was foretold by the 102 page ruling for Novell and against SCO, handed down by Judge Kimball back on August 10th. I decided to let some of the dust settle before wading in with my two-pence-worth observations.

Etymology

The title for this post comes straight from an entry on the Yahoo! SCOX board. Normally I spend as little time there as possible, but I had to go and see what those guys would write after Friday's news. I was not disappointed. Posted by vanburgerstein, it is, as raoulduke_esq notes in his reply, some of the best over-the-top sarcasm I've read in quite a while. So I start off with a complete quote of vanburgerstein.
It certainly appears that the operating system whose source code was not transferred to Linux in any way shape or form isn't owned by SCO. I'm willing to concede that after much scrutiny and years of legal wrangling, SCO was shown to be completely in error. There is an upside here that you have all missed. Having made those errors in judgment, I believe the company will be much smarter going forward. They now have the time the need to reorganize, on full salaries, and emerge even stronger. If it turns out they owe Novell 25 million, I have every confidence SCO management will be able to sell it's mobile technology for that much and move on. Critics argue the mobile applications are a cruel joke and worthless, on a good day. I'll take Mr. McBride's word over theirs any day.

Let's chalk this up to a set of honest mistakes and get behind this stellar crew once again.
The nice thing about well-crafted sarcasm is how it can really cut to the heart of any matter, in the process cutting out the heart of its intended target, which in this case are the shills pumping SCOX and claiming that The SCO Group (the former Caldera) has anything other than a snowball's chance in hell.

Is It Really Over?

What needs to be carefully pointed out is that this is a filing for bankruptcy only. The trial to formally deny or confirm official bankruptcy will actually take place next Tuesday, September 18, in Delaware, not in front of Judge Kimball in Utah. It will be interesting to see if a bankruptcy court, after reading Darl McBride's "In Support Of First Day Pleadings", will allow The SCO Group to hide behind Chapter 11 to continue business as usual (minus all the lawsuits). Page 17, section 49 gets to the heart of The SCO Group's problem and why they're there:
The court's summary judgement in favor of Novell held that Novell was entitled to at least some portion of the funds received by SCO in 2003 from the Sun and Microsoft Agreements. The trial previously set to commence on September 17, 2007 in the District Court on SCO's claims and Novell's counterclaims is, therefore, now limited to determining the amount of SVRX Royalties to be awarded to Novell and whether a declaratory judgement should be issued that SCO was not authorized to enter into these agreements.

Novell claims that it is entitled to the full amount of the Microsoft and Sun payments and to all other SCOSource agreements, which, collectively constitute a principal amount in excess of $26 million, and, with claimed interest, in excess of $37 million. Novell also seeks the imposition of a constructive trust on whatever such funds are currently in the Debtor's possession can be properly traced back to those transactions. The entry of a substantial judgement against SCO would like impair the Debtor's ability to conduct their business in the ordinary course and the value of SCO's litigation claims relating to infringement of its intellectual property rights in Unix.
Translation: We entered into a series of ill-advised high-dollar lawsuits against IBM and others with deep pockets in an attempt to shake money out of them to shut us up and make us go away, and what we got instead was everybody fighting back. Now that the judge in the case has ruled against us (after four years of torturous litigation) we might be forced to give to Novell all or part of the money we got selling bogus Unix licenses to Microsoft and Sun to help finance these lawsuits, and if that happens we'll be put out of business so that we can't continue our litigation scam. Help!

I certainly hope the judge in Delaware reads it that way. If The SCO Group is allowed to run and hide behind Chapter 11 after causing years-long substantial trouble on the flimsiest of evidence, then there really is no justice.

The Shills Squeal

How could a story about The SCO Group be complete without a quote from the First Lady of Shills, Maureen O'Gara. O'Gara, she of LinuxGram and SYS-CON fame, continues to provide material for SYS-CON in the form of SYS-CON News Desk blurbs. Her latest:
There'll be no running off to Denver to save the day for SCO.

It had asked the Utah district court hearing its case against Novell to let it appeal the court's summary judgment finding that Novell owns the Unix copyrights to the Court of Appeals in Colorado before the trial starts on Monday. That ain't gonna happen. The judge said no.

And it ain't gonna be a jury trial like SCO wanted. It's going to be a bench trial with only Judge Dale Kimball deciding how much of the $25 million SCO got from Sun and Microsoft should go to Novell.

If there's anything left in the kitty after that maybe SCO can scrape together the bond that will be need to appeal. It's supposed to be a highly overturnable decision in which Kimball usurped for himself decisions only a jury can make under the law.

Apparently it's a familiar pattern. Kimball has a string overturned summary judgments to his name. Maybe he should get clerks with higher grades in law school if he's gonna let them write his decisions. They made some real big bloopers in the SCO case.
Trashing a sitting federal judge is of course the favorite M.O. of these shills. They all seem to miss the point that Judge Kimball sits on both the SCO vs IBM trial as well as Novell vs SCO, and that it has been on-going since SCO vs IBM was filed in 2003. There's also something interesting about the last paragraph in her screed. What list of overturned summary judgements is she referring to? That would have made for interesting reading and it would have bolstered her nearly indefensible position (somewhat). Instead, Maureen (and her ilk) continues to sling unsubstantiated innuendo after innuendo. But that's her way, and she surely won't change now.

Dancing In The Streets

Finally, there's Steven J. Vaughan Nichols' article "Stick a fork in SCO. They're done." Typical of the multitudinous "I Told You So" articles, Steven leads off speculating that somewhere at Novell their lawyers are probably popping open a few bottles of champagne, followed by his summation of the facts of the case. Those facts can be further distilled down to four major points;
  1. SCO never owned the Unix IP. It was never transfered to the old Santa Cruz Operation when Santa Cruz purchased what turned out to be the old Unix reseller channel from Novell to combine with Santa Cruz's existing reseller channel. Either through stupidity, cunning, or a combination of the two, current SCO Group did not get the Unix IP rights when then-Caldera purchased Santa Cruz's Unix business. Unfortunately for The SCO Group Judge Kimball agreed with Novell's interpretation. Which leads to;
  2. SCO never had the right to sue IBM (or Daimler-Chrysler or AutoZone or ...). And IBM knew this, having been a major Unix developer since the early days of Unix. The SCO Group, having no historical background in Unix whatsoever and having merely purchased the tattered remnants of hand-me-down Unix, knew nothing. The problem with deep pockets is that they can as easily pay for lawyers as to pay you off, and IBM decided to pay the lawyers to defend its good name in this matter.
  3. SCO never had the right to set up SCOSource and then sell licenses to Microsoft and Sun, just to name two.
  4. When The SCO Group realized their initial premise was incorrect about their owning the Unix IP, and when they couldn't talk Novell into just giving those vital Unix IP rights to The SCO Group, and when Novell mentioned this important detail in public, The SCO Group filed their slander of title lawsuit against Novell, which in turn eventually led to the summary judgments against The SCO Group and next week's day in bankruptcy court.
There's really not much more to say. For me it's been over for a long time. The SCO Group never did provide any concrete evidence to back their claims because they never had it and because it wasn't about right vs wrong but about finding a quick payday from a rich firm. If anything, I learned that I could once again trust IBM and that Microsoft continues, as a corporation, to involve itself in unethical and illegal attempts to coral any and all competition, in this case Linux.

Updates

Déjà vu all over again. The BSD case.

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