OFF-TOPIC - The SCO suit

Karsten M. Self kmself at
Sat Nov 22 02:11:23 UTC 2003

on Thu, Nov 13, 2003 at 09:38:42AM -0800, Lawrence E. Rosen (lrosen at wrote:
> On Thursday, November 13, 2003 3:41 AM, Mahesh T. Pai wrote:

> > Could not any of the copyright  holders to the Linux Kernel sources
> > (I understand  that  there  are   several,  since  Linus  does  not
> > seek assignment)  initiate  appropriate  proceedings against  SCO's
> > claims against the several Fortune 500 companies??
> > 
> > Surely, there is  no claim that _every_ file in  the kernel sources
> > is infringing; so far  as I can understand the  pleadings. But, the
> > claim for  royalties ( or  whatever against  the fortune  500 cos)
> > does not restrict the  claim to  use of the  infringing files.
> > Hence,  the last paragraph (the proviso) has no application.
> > 
> > There have been enough public statements from SCO's officers to
> > invite such  litigation. I  am  also aware  that  the owner  of
> > copyright  in majority of  the files making up  the kernel sources
> > is  at present in the US .... thus making the job easier ...

> Why would we bother?  We'd be in the same court, with the same attorneys,
> and the same issues to resolve, as SCO/IBM are already.  Does the open
> source community need yet another lawsuit?  /Larry Rosen

It's a matter of strategy more than legality.

Red Hat has sued for injunctive relief largely to speed the process
along.  If Caldera/SCO can be made to reveal their evidence -- or far
more likely, lack thereof -- in advance of the March, 2005 court date
for the IBM case, we can watch this whole thing go away and get on with
real business.

I suspect this case is going to be rather more about funding sources and
running Caldera/SCO through its legal "warchest", and of compelling it
to spill its evidence (or, again, lack) on an accelerated schedule, than
it will be about the specifics of the underlying complaint, per se.

Example:  speculation on one of the commentary sites was that the latest
funding disclosures regarding terms of Boies remuneration give his law
firm a 2-3% equity stake in the firm.  At what point does he cease being
a lawyer and start being what he represents, himself.  Discussion with a
legally-savvy friend raised the possibility that IBM seek to depose
Boies as a witness.  While he might not be able to tell much, he'd be
unable to serve both as counsel and witness on the case.  Meaning
Caldera/SCO had just lost $20m - $30m worth of warchest on tainted
counsel.  While this specific eventuality may not come to pass, I'd put
certain money on the fact that tactics which serve largely to exhaust
or lock up our Lindon friends' limited resources likely will.

After all, flipping sides, Caldera/SCO has done relatively little itself
within scope of law -- the bulk of its actions have been on the PR and
financing fronts.  Legal actions have largely consisted of creating PR
fodder and stalling real progress. 

Stop thinking like a lawyer, Larry.  Think like someone who wants to
_win_ this thing ;-)


Karsten M. Self <kmself at>
 What Part of "Gestalt" don't you understand?
    Bush/Cheney '04: Four More Wars!
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