SCO wanted to gag Torvalds

Unix company was gathering information to support a court order to silence individuals related to its open-source legal case against IBM
Written by Tom Espiner, Contributor on

Unix specialist SCO Group tried to legally silence Linus Torvalds, the creator of Linux, as part of its long-running legal battle with IBM.

Documents, filed by IBM on Friday, contain a copy of a letter from SCO to IBM's lawyers. In the letter, dated 11 February, 2004, SCO attorney Kevin McBride requested information regarding individuals and organisations SCO had been "told" were being funded by IBM, as SCO was "concerned" about statements regarding its litigation by those people. SCO had accused IBM of copying proprietary Unix intellectual property into Linux.

SCO was in the process of gathering information to request a court order that those people, including Torvalds, refrain from making disparaging public statements about SCO, with regards to the case. SCO also tried to silence Eben Moglen, a Columbia University professor who, until this month, was a director of the Free Software Foundation, and Eric Raymond, a controversial open-source advocate, saying they claimed to be IBM consultants.

"Any agreement to refrain from such public statements should include not just IBM, but also affiliates and consultants that directly or indirectly receive financial support from IBM. This letter lists several persons and entities that, we are told, receive direct or indirect financial support from IBM. We would ask you to confirm if this is true," wrote McBride.

SCO sought to silence Torvalds, who at the time worked for the not-for-profit Open Source Development Labs (OSDL). Torvalds had sided with IBM over what rights IBM had over its code.

In the letter, SCO claimed that IBM was the principal sponsor of OSDL, but offered no evidence in the letter to support that claim. IBM was a member of OSDL at the time. "We are... concerned about the statements about SCO's litigation claims made by Linus Torvalds, who is employed by the Open Source Development Labs OSDL, which is funded principally by IBM," wrote McBride in his letter. "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."

Eric Raymond had called the SCO lawsuit against IBM "a farce". Both Raymond and Moglen had been critical of SCO. Moglen had worked as a developer for IBM from 1979 to 1984 but SCO offered no evidence in the letter to support its claims regarding Raymond and Moglen.

"We are also concerned about the many litigation-related statements made by Eric Raymond, who claims to be a paid IBM consultant, and by Columbia law professor Eben Moglen, who also claims to be an IBM consultant. Mr Raymond and Professor Moglen have been highly critical of SCO's litigation claims. If paid by IBM it is only fair that they, along with Mr Torvalds, be included in the scope of any stipulation or order regarding litigation-related public statements," wrote McBride.

However, IBM lawyers responded to McBride's letter the following day, strongly denying that IBM had caused Torvalds, Raymond or Moglen to make any statements on its behalf. "Contrary to Kevin's suggestion, which is entirely unsupported, IBM is not causing any third party (including those listed in Kevin's letter), through funding or otherwise, to make statements on its behalf about the litigation," wrote Todd M Shaughnessy, an attorney representing IBM.

SCO also sought to silence Groklaw, a website that follows cases involving open-source software.

The SCO vs IBM case has yet to come to trial. SCO is also currently heavily embroiled with Novell, which is disputing SCO's Unix-ownership claims.

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