Once more on SCO

So, now that SCO has made it to the appeals court with respect to Kimbal's ruling on copyrights, I'm offering a bet: I'll admit to being wrong about the court's judgement if they uphold Kimbal,. you admit to being wrong if they don't.

From this blog for January 8 2008:

What's worst about [the hate mail I get when ever I comment on SCO] , however, is that the "groklaw effect" has become a significant component in the overall Linux "gestalt" - and just about everything most of that mob has been led to believe about the case is wrong.

The fundamentals of the case are simple: SCO (and I use the name generically) asked IBM to pay continuing royalties under its AT&T Unix licenses; IBM said words to the effect of "Nope, we have a fully paid perpetual license"; a discussion ensued during which SCO became convinced that IBM had breached the contracts by allowing people with intimate knowledge of the AT&T source to contribute to Linux; and so SCO issued the 90 day license suspension warning against AIX required under that contract.

At the time I expected that IBM's senior management would review the issue, recognize a problem, and settle expeditiously with SCO; but that didn't happen. Instead IBM circled the wagons and waited for SCO to do what it had to under the contract: escalate the conflict by formally suspending IBM's Unix licenses with respect to AIX and then ask a court to enforce that order against IBM.

That should have been a simple process: all SCO had to do was show the court that at least some IBM Linux contributors had significant prior or concurrent exposure to AIX source and it would have been game over for IBM. That didn't happen either: instead it appears that someone somewhere in the process saw the combination of IBM's intransigence and deep pockets with a rather obvious contractual dispute as a potential gold mine - and out of that we get the next act in which a major east coast firm, headed by the same lawyer who had been unable to prove that Microsoft benefited from an illegally obtained and enforced monopoly, gets a cost plus style contingency agreement to prosecute the case against IBM and we start to see inflammatory, and largely incorrect, claims issued in SCO's name.

Since much of what both sides said subsequently had little to do with the issue (and everything to do with valuing the settlement) I expected to see the consequent posturing roil along until the case got to court and then get swept away as irrelevant, but that hasn't happened yet. Instead, IBM pulled a wild card: lawyers working with the contracts under which Novell sold the AT&T Unix assets to SCO discovered that the section on Netware explicitly withholds copyrights for Novell's own use while the section on the Unix contracts, products, and sources transfers everything lock stock and barrel but doesn't explicitly mention copyrights - and out of that (I imagine coupled with the emotional freight delivered by east coast lawyers forced to travel to hicksville to drop pearls before rubes) we get Judge Kimbal's August ruling that Novell, the company which got SuSe with $50 million in IBM funding and whose own CEO and key negotiator at the time testified that they were indeed selling the copyrights, hadn't actually sold the copyrights.

Since Kimbal's decision to decide on disputed testimony probably constitutes reversable error, this nonsense won't stand for ten seconds if the case gets to the appeals court in Denver - but between paying its lawyers and the relentless attacks on SCO (and thus on its business) by people using groklaw, SCO may well be defeated financially before that happens.

So far, the corpse is still twitching - Here's part of a report from The Salt Lake Tribune for March 6/09:

The SCO Group of Lindon has filed an appeal reasserting its ownership of the copyright of Unix computer operating system software, a move officers believe will get it back on track to pursue claims against IBM in a case that has riled the open source software community.

In a brief posted Friday by the 10th Circuit Court of Appeals, the software company seeks to overturn rulings by U.S. District Judge Dale Kimball in Utah. Last year, Kimball held that Novell retained certain copyrights to the Unix system after it was sold in 1995 to a California company and that was subsequently purchased by The SCO Group. Left standing, that decision could prove fatal to SCO's claim against IBM over code in the popular Linux system.

SCO has been repeatedly vilified by advocates of software that is open for use and alteration by the public since it launched its legal attack on IBM six years ago this month. SCO claims IBM used Unix code owned by SCO as the basis for a feature in Linux that made it a commercially viable product.

Since then, SCO has seen its revenue fall, and blames the losses on competition from Linux. It sued Novell after Novell claimed it and SCO owned the Unix copyrights.

But in August of 2008, Kimball granted Novell's request for summary judgment. After a trial, he also awarded Novell about $2.5 million, plus interest in licensing revenue.

SCO's broad argument in its appeal is that there is plenty of evidence showing that it owns the Unix copyright and that Kimball erred by prematurely ruling for Novell instead of setting the case for trial.

Kimball disregarded "evidence of numerous witnesses and documents drawn from both sides" and then "improperly drew inferences in favor of Novell in resolving what both it and Novell previously recognized to be ambiguities," SCO argues

So here's a bet - and if you want to accept the bet just put a note to that effect in the comments here. If this court or one directed by it does not overturn Judge Kimbal's ruling and I'm still writing this blog the week after it happens, I will dedicate a Saturday entry entirely to lines that look like this:

Dear XX - I'm sorry, I was wrong about the appeal court's response on SCO's ownership of the copyrights.

Where XX is the name of the person whose comment on this blog signifies a willingness to take the bet.

If, however, the appellate court or one directed by it, either overturns Judge Kimbal's ruling or returns it to him with instructions to reconsider, then you promise to add a comment to my subsequent post on the issue containing two things:

  1. an apology for any nasty comment(s) you may have made on this issue; and,
  2. an explicit statement that you were wrong to join the anti-SCO mob without thinking about the underlying issues.So, haters: got the guts?

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