SCO media circus turns into a mad carnival

LAST WEEK the one-year anniversary of The SCO Group (nee Caldera) assault on Linux passed unnoticed. SCO launched a lawsuit against IBM on March 3, 2003. But nobody noted this sour anniversary because there were new acts appearing last week in SCO's mad carnival of alternate reality: two new lawsuits, quarterly financial results, a new Court Order, plus a smoking gun memo revealing that Microsoft is bankrolling SCO's play.

Oh, what tangled webs SCO weaves! A year later, that lawsuit against IBM is already turning against SCO, halfway through discovery. The Court has ordered SCO to do what it's always avoided doing -- show all the alleged infringing Linux source code. The Court Order came in last week, delayed by case law research, judicial discussion and rather careful writing.

SCO has already defied the Court in the IBM case twice, on the matter of disclosing allegedly infringing code in Linux "with specificity", but it gets one last chance and 45 days to do so. The Court is being extremely accommodating in the face of SCO's recalcitrance, thus creating a record that SCO will find difficult to appeal if the Court rules against it.

IBM understands what the Court is doing and is more than glad to help it out by not pressing prematurely for sanctions against SCO's charades.

The Court also gave SCO enough rope to jack its litigation expenses into the stratosphere. SCO had asked to depose 7,200 IBM employees. Maybe SCO thought the Court would tell it to reconsider the number of depositions. But the Court took SCO at its word and decided that 1,000 would do for a start, with additional depositions possibly to be entertained later. The Court here is telling SCO that it may incur a ruinously huge and lengthy lawsuit, if it really wants one. The Court has called SCO's bluff, so it will remain to be seen how much time and money SCO really wants to spend on repetitive and likely pointless depositions of IBM's Linux coders.

SCO's balance sheet doesn't look healthy enough to bankroll a multi-year discovery process. And such drawn-out litigation would not seem to be in SCO's interest, if its real aim is to collect damages from IBM and start levying its proposed troll-tax on Linux users (assuming it can prevail). But maybe SCO isn't worried about high litigation expense because it has a secret backer with billions to spend. And maybe years of legal wrangle serves that backer's interest because its new OS won't be ready soon.

As it turns out, this would appear to be the case, as we'll soon see.

The Honorable Dale Kimball and Federal Magistrate Judge Brooke Wells seem to see through SCO's inane posturing and ludicrous courtroom maneuvering and appear to be taking extra care to leave SCO no avenues for appeal. I suspect -- though this is merely my opinion, IANAL, etc. -- that they'll evenhandedly grant IBM sufficient leeway to make a memorable example out of SCO, as well as perhaps expose and put in play those steering SCO.

SCO launches lawsuits like successful companies that build useful things launch new product lines. With last week's filings of two more lawsuits, SCO is now involved in five court cases -- actually, seven if one counts the counterclaims in the IBM and Novell cases separately. SCO initiated all but one of the lawsuits, Red Hat's Declaratory Judgement request.

Timing of PR spin is everything is SCO's alternate reality, where how it looks matters more than what's actually happening at any given time. The timing of SCO's announcements last week that it would announce lawsuits, and those lawsuits announcements themselves certainly fit SCO's pattern. Only the naive would believe that those SCO PR events weren't planned to coincide with release of the Court Order in the IBM case and overshadow SCO's publication of disastrous looking quarterly financial results.

The two lawsuits themselves aren't what SCO claimed in its announcements last week. They aren't really lawsuits against Linux users, but lawsuits against SCO's own customers. SCO's targets for these newest lawsuits are Autozone and Daimler-Chrysler. But neither one passes the laugh test.

The suit against Autozone appears at first glance to allege infringement of SCO's alleged copyrights to Unix System V, but it's actually claiming infringement of SCO's UnixWare copyrights (which are not controversial). However, Autozone wasn't a SCO UnixWare user but an OpenServer customer. Oops! Maybe someone should tell SCO's lawyers that they are two entirely different products and SCO OpenServer is a primitive, rather lame OS (as is UnixWare too, but the point is that they're different code bases).

It's simply not credible that SCO will find any OpenServer code anywhere in Linux but of course it's welcome to look. Again, show us the code!

SCO's lawsuit against Daimler-Chrysler is even weaker. A while back, SCO sent all its UnixWare licensees letters asking them to certify that they weren't using Linux. This request was an illegal unilateral modification of SCO's contracts with its customers, so most did not bother to respond to it. In this lawsuit against Daimler-Chrysler, SCO's attempting to say that, because Daimler-Chrysler failed to respond, it's liable to SCO.

In both instances, SCO is suing its own customers, but telling the world that it's suing "Linux users". It's merely more dissembling from SCO.

A point of interest surfaced in the Daimler-Chrysler filing. SCO used MS Word for that and the change history revealed that it had been planning to sue Bank of America, up until a day or two before filing the lawsuit, and wanted to invoke the DMCA's draconian provisions to impound software from Bank of America pending trial. But SCO didn't follow through on it, so we can surmise that SCO did not think it would get away with this.

It's still a chilling thought and one more reason to repeal the DMCA.

But SCO's center ring act of last week wasn't scripted (at least, not so far as we know). A SCO whistle-blower forwarded an especially explosive email to Eric Raymond, who promptly published it as "Halloween X" on his website. The memo reveals that Microsoft is bankrolling SCO, to the tune of over $100 million so far in support of SCO's attacks on the Linux OS. Later, SCO acknowledged that the email was genuine (and tried to spin it of course). But it's a hot lead for IBM's lawyers to follow in discovery on IBM's counterclaims against SCO and its backers. And it's also a wake up call for the US Department of Justice antitrust enforcement division, or more likely Judge Kollar-Kotelly, who retains Microsoft oversight.

A few other things happened relative to SCO's campaign against customers and Linux but these are weird and wonderful enough for one column. Links to all these SCO stories and more are available at the essential Groklaw here. µ