>>The other day I was asked what the odds were that SCO would win against IBM. On the basis of how the two parties were behaving, I offered a range of between 55 and 65 percent. I've spent a lot of my life watching litigation, and I believe that you can better tell the outcome by trying to determine what the parties believe and how believable they are than if you just try to dig through their rhetoric.
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Please be more specific about how you think the parties are behaving. On the basis of how the parties are behaving, I come to the exact opposite conclusion. That paragraph is really just about the same as not writing anything.
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>>The pleadings generally amount to incredibly detailed "they did this, they did that" kinds of arguments, and it becomes difficult to call a winner until you actually see what shows up in court and how the judge and jury react.
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OK. On the other hand, if we won't know the winner until the judge says so, maybe SCO should hold off on the statements like "Linux absolutely has our IP" until then.
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>>SCO and its legal team continue to bet the farm that they will win, and IBM appears to be trying to limit its risk. Also, IBM doesn't have complete control of its own side, especially with a massive amount of well-wishers who might actually be making it more difficult for IBM to win. For example, who do you think really benefits from a denial-of-service attack on SCO?
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SCO didn't have that big a farm to bet. They claim to have been a few quarters away from shutting their doors earlier this year. About who benefits from the denial of service, do you think SCO will ask the judge to declare they win because they suffered a denial of service attack? I don't think SCO will ever provide proof or evidence that denial of services brought their website down for more than a week every time the business day ended.
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>>One of the strongest indications I have that SCO might win is that several of the financial analyst groups who work with me, after reviewing the SCO submissions, have concluded that SCO might actually have the advantage. These firms are relatively unbiased and, generally, if they do have bias, it would typically favor a company like IBM with which they have substantial interest as opposed to a company like SCO with which they don't.
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Unnamed financial analyst groups. Why not present the evidence that they used to become convinced? Of course legal analyst groups may be in a better position.
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>>I clearly have become fascinated with the rhetoric coming out of the open-source community. It appears to me that a lot of people believe the U.S. legal system is based on what people outside of that system believe -- or that simply because something should be the case is enough to ensure that it will be. Unfortunately, life and litigation generally don't work that way.
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Why not provide a quotation? Since you didn't I'm not sure I should believe your assertion about the beliefs of the open-source community.
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>>Have you ever watched a divorce either between marriage partners or between business partners? From the outside, it can look like the participants were suddenly possessed by evil spirits or aliens. This is because during the early phases of a relationship, when people are working together, they tend to ignore the other person's shortcomings and talk about how wonderful they are.
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>>Once the relationship fails, however, the other person is often presented as if they were Satan spawn with no redeemable qualities at all. So it has seemed with SCO. The company started off as friendly underdog Caldera going after Microsoft. Now the company is nasty little SCO going after Linux . As far as I can tell, it really is the same company.
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Well, different management for one. But nastiness or underdog-ness is not evidence. Where is the evidence?
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>>When the litigation first started, I personally had little interest in Linux and open source , even though I had covered it on and off for well over a decade. While it was clear the movement had engaged others, it hadn't yet engaged me. However, a few months ago, this changed because I started to get disturbing e-mail from people I had previously respected. When I tried to point out that SCO might actually be in the right, suddenly the attacks shifted to me in a very personal way in an apparent attempt to shut me up.
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A little on the paranoid side? People who speak in public have whackos who don't like what they say. That's true of you, Linus Torvalds, Dee Ann Leblanc and others. I wouldn't characterize them as trying to shut you up. Anyone who believes he or she can "shut someone up" with an email is too wacko to be believed. In general, if you are afraid of wackos, get out of the publishing business.
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>>At the time, I wasn't siding with SCO, I was just pointing out that the company's position might have merit, and that I knew some of the folks and they weren't as evil as people seemed to think. I'm an analyst; this was analysis.
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>>SCO was simply saying that IBM had taken SCO's intellectual property and was giving it away to the open-source community. Given my experience with cases like this, it wasn't unusual that a big company was doing something like this. I'd seen it before.
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Really, then you could have provided an example and chose not to? Was your example a closed source company like Microsoft inserting code in secret and hoping it would never be exposed? Is the reason you chose not to include your example that it is impossible to add code to Linux in secret hoping that it will never be exposed, so there is no valid analogy? I'm going to guess yes, that's the reason you didn't give us an example.
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>>What seemed to be different was that the open-source community seemed collectively to say, "Theft is okay as long as we benefit." SCO was suddenly painted as evil, referred to in terms that implied it was incompetent, greedy and came from questionable parentage. The company's Web site was attacked and its executives threatened. And a lot of people who should have known better seemed to think this was okay and that SCO was getting what it deserved for being on the wrong side.
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You need a quotation to support an assertion that the open source community said "Theft is okay." Linus Torvalds has been quoted saying the opposite. Linus could be considered a member of the open source community.
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>>Ever watch people who have been caught stealing something defend themselves? They say things like, "I found it," "Someone else gave it to me," "It wasn't yours to begin with" and, "I have as much right to it as you do." In the open-source rhetoric that followed the SCO lawsuit announcement, I saw a tremendous amount of similarity to this behavior.
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Ever watch someone lying to run a scam? They say things like I have absolute proof that I can't show you. Specifically SCO has said many times that the code in question was not BSD code. They show the code then, lo and behold, BSD code. Not "obfuscated" but a clean room implementation. Why hasn't SCO shown more evidence that can't be debunked? Seriously, if they have it, they would be in a much better position if they show it. They don't show it because either they are incompetent or it doesn't exist. OK, maybe both.
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>>So, what if the SCO folks are not evil incarnate and their stuff was stolen? Wouldn't that make them the victim, and is it really okay to attack the victim if your side benefits? Where do you draw the line between good and evil?
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Whew, trying to pull a fast one there huh? Evil incarnate and stuff stolen are two separate ideas. One can be true and not the other. You show a quotation and I'll address the evil incarnate stuff. I have not seen one person accuse SCO of being evil incarnate. What if their stuff was stolen? If it was, they are the ones with the proof. IBM will see whatever evidence they have in discovery long before it gets to a judge. Who are they hiding their proof from? They claim to have millions of lines of code. They could show all of it without giving IBM more information than it will have before the court date. Why not show 1% of it? Once again SCO would be in a stronger position if it shows the code. The fact that they refuse proves they are incompetent, they don't have the evidence they say they have or both.
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>>One belief I found to be particularly interesting was that you could get out from under this problem by simply rewriting the sections of a software product that were in violation. Some people evidently think that if you were caught with a line-by-line copy of someone else's software product, all you would have to do is rewrite the offending lines and you could continue to sell the result.
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>>To extend the example to the book-publishing world, some open-source proponents have argued that if you started with Harry Potter and the Sorcerer's Stone, you could end up with Parry Hotter and the Wizard's Rock and be just fine. But this sort of line-by-line replacement won't work because the ideas that surround the product are also protected.
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How about rewriting code from scratch that provides the same functionality? That's what the Open Source community has actually proposed. In case you didn't know, SCO owns no patents relevant to the Linux kernel, where they most recently claim the violations are. Producing code independently that provides the same functionality does not violate copyrights. You won't believe me so ask your "financial analyst" friends. Assuming they exist.
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>>Were you to read the original AT&T license, which I did, you would find that it anticipated things like this and, if it is enforceable, protects against it.
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If you were to read the original AT&T contract, along with its side letters, which I did, you would find that it anticipated things like IBM adding features to its OS that didn't include any original System V code. In fact the original side letters *specifically* allow IBM to do whatever it chooses with such code. Will SCO prove the opposite in court? Good luck. Until it does, there is no SCO IP in the form of derived works in Linux.
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>>Let's pretend for a moment that we live in a country where you have the right to protect what is yours, regardless of whether you built it or, like SCO, bought it.
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>>Let's also pretend that, when there is a doubt about ownership, you have the right to prove that ownership and that no group of vigilantes or large companies has the right to force you to give up what you can prove is yours, or take away your right to try. Let's pretend that people in general in this mystical land of the free have the right to have opinions different from yours without fear of personal physical or verbal attack.
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Do you believe the Open Source community is stopping SCO from proving its ownership of the code? How could it do that? SCO has made a decision on its own to refuse to prove its ownership. None of its excuses are valid. The reason it can't prove it is most likely that its claims are not true.
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>>I actually think I live in a place like this, so it would be nice if more open-source software folk joined me here.
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Your closing was worthy of violins. I'll close by saying if SCO wants to wait for the court of law to decide if it is right or wrong, that is fine. They should have evidence to show the court. If SCO wants the "court of public opinion" to rule in its favor, they have to show their evidence in public. Sorry. You want the public to believe you? You have to show evidence to the public. From their refusal to make their evidence public, we can only conclude that they don't have any.
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