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IBM Unseals Two Declarations
Monday, October 17 2005 @ 06:32 AM EDT

IBM has filed a Notice of Unsealing [PDF], which tells the court that it is unsealing an Amy Sorenson Declaration in Support of IBM's Memorandum in Opposition to SCO's "Renewed" Motion to Compel [Docket Nos. 219-220] [PDF], a motion SCO already lost, with unscanned paper exhibits, and a Declaration of Todd M. Shaughnessy in Support of IBM's Opposition to SCO's Motion for Leave to File a Third Amended Complaint [Docket No. 345] [PDF], another motion SCO lost, with paper exhibits galore.

We'll have to pick them up from the court, and I can't wait because there is an abundance of materials about Project Monterey, including the Joint Development Agreement between Santa Cruz and IBM, dated 1998. I just can't figure out from the Declaration why the last two exhibits were submitted.

Remember when Daniel Lyons at Forbes wrote that hilariously wrong article in August of 2004 about how SCO had a bombshell piece of news, that SCO was maybe really going to get IBM at last, that SCO was shocked, shocked to learn from some internal IBM emails obtained in discovery that SVR4 was used on Power? That they had learned that IBM lacked a proper license for AIX since 2001? It was the first time we learned about those "information wants to be free" internal IBM emails SCO kept leaking, until SCO's surreal and silly motion was denied.

Here's a snip of the Lyons article, just to remind you of his breathless excitement at his "scoop":

The nasty legal battle between SCO Group and IBM may soon grow wider, as SCO executives have dropped a new bombshell.

In private interviews during their annual user conference in Las Vegas this week, SCO executives said they have discovered that IBM lacks proper licenses for its Unix-based AIX operating system, heart of a multibillion-dollar business for IBM.

SCO alleges that since 2001, AIX has contained code for which IBM does not have a license. Moreover SCO claims to have found internal IBM e-mails in which IBMers acknowledge this shortcoming. . . .

Linux zealots will no doubt write off SCO's latest claim as yet another PR ploy. Maybe they would be right. Or maybe SCO is misreading IBM e-mails. Or maybe the e-mails were written by IBMers who didn't know what they were talking about. Or maybe--just maybe--SCO is onto something.

Or maybe not. Or maybe -- just maybe -- SCO pulled the wool over his eyes. While there are other possiblities, one thing is for sure. A bombshell it was not, although I think the stock went up when Lyons' story broke, if I recall correctly.

I love that part about "Linux zealots". Lyons loves to use that pejorative phrase. I have arrived at the opinion that the man simply hates Linux and anybody who likes to use it. But, is Forbes Mr. Lyons' personal blog? If not, are his personal opinions, hates and loves, supposed to show so blatantly? Just asking.

Of course, folks like me who know a thing or two about Linux were indeed right, as it turns out, and it was just a SCO ploy, one that was sure to fail, and so Mr. Lyons' inability to hide his frisson at the prospect of SCO prevailing over IBM was comical, then and now, utterly dashed by reality. Funny how those "Linux zealots" keep proving to be right. Is that the new definition of zealot, someone who is always right despite your fondest hopes otherwise?

The Lyons article is attached as an exhibit to the Shaughnessy Declaration, near the very end. And who else is there, right next door? I'll let you find out for yourselves. Yessir. Two peas in a pod, side by side, going down in history together as Exhibit 24 and Exhibit 25.

Of course, as we pointed out when the Lyons article was published, both Santa Cruz and Caldera knew perfectly well years ago that it was happening, and in fact Judge Kimball eventually ruled that SCO either knew or should have known about it, and he denied their motion for leave to amend. When you look at the incredible list of IBM exhibits, with many articles and papers available to any journalist bothering to research the matter on Lexis, it is hard to imagine how SCO thought it could get away with such a claim or why Lyons fell for it.

Mr. Lyons can't say I didn't try to tell him. As a matter of fact, I told the world back in July of 2003 that SCO knew as far back as 2001 that IBM had System V Release 4 code in AIX 5L, knew it worked on Power, and that they had no objection. So how could SCO make such claims? And how could Forbes print such an article in the face of so much evidence to the contrary, none of which appeared in the article?

I know, you'll say that they don't read Groklaw. My stars, children! They fairly dote on my every word. So that can't be it.

I'm thinking Lanham Act damages, of course. You can't blacken the name of a company, be wrong, and expect no consequences. I won't bother my pretty little head over it, I guess. It's their problem. I certainly did my part, even providing a history lesson just for Mr. Lyons' and SCO's benefit. I must say, though, with no false modesty, that if you compare our records for accurate research and reporting on the SCO case, I think my meanest critic would have to acknowledge I win. Is that why Lyons hates me? You think?

Yes, I know. A new masterpiece from the same trough has surfaced. I will have more to say about that shortly. I have a little surprise for Mr. Lyons. You'll never believe it, but the man got some facts wrong. Or maybe -- just maybe -- you would.

Meanwhile, here's the Pacer listing:

[527] - 11-Oct-05 - UNSEALED DECLARATION of Todd M. Shaughnessy re [345] Sealed Document filed by International Business Machines Corporation. (TAKE NOTE: This document is oversized. Only the main declaration is scanned into an image. The exhibits are not scanned. The complete document is retained in the clerks office for viewing.) - IBM

[528] - 11-Oct-05 - UNSEALED DECLARATION of Amy F. Sorenson re [220] Sealed Document, [219] Declaration filed by International Business Machines Corporation. (TAKE NOTE: This document is oversized and only the declaration is scanned into an image. The exhibits are not scanned. The entire document is retained in the clerks office for viewing.) - IBM

[529] - 11-Oct-05 - NOTICE of unsealing documents by International Business Machines Corporation re 527 Declaration, 528 Declaration, Court

  


IBM Unseals Two Declarations | 253 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT HERE
Authored by: fredex on Monday, October 17 2005 @ 06:49 AM EDT
Please put your OT replies here....

[ Reply to This | # ]

Definition of zealot
Authored by: Anonymous on Monday, October 17 2005 @ 06:53 AM EDT
1. One who is zealous, especially excessively so.
2. A fanatically committed person.

dictionary

Fanatically, committed, and zealous for the truth...

[ Reply to This | # ]

Corections Here
Authored by: wHo on Monday, October 17 2005 @ 06:54 AM EDT
If weeded

---
IAAL but not in the USA - My comments here are not legal advice and maybe only
worth what you paid me for them.

[ Reply to This | # ]

I can tell who was up all night....
Authored by: The Mad Hatter r on Monday, October 17 2005 @ 07:17 AM EDT


Still it's nice to drop in at 7:00 AM and see something new on the case! Thanks
PJ.



---
Wayne

telnet hatter.twgs.org

[ Reply to This | # ]

IBM Unseals Two Declarations
Authored by: grundy on Monday, October 17 2005 @ 08:43 AM EDT
One of the things that endears me to Groklaw is
that PJ frequently sends me to the dictionary.

[ Reply to This | # ]

Forbes destroys its own credibility
Authored by: Anonymous on Monday, October 17 2005 @ 08:45 AM EDT

I don't understand why a publication would have such a cavalier attitude about
its own credibility. Do its advertisers care? Perhaps not. After all,
advertisers don't care about the credibility of "reality" TV.

PJ had MySQL's head guy write something for Groklaw. Could Forbes' top decision
maker do the same thing, explaining why Forbes keeps publishing someone who
almost always gets it wrong?

Is Forbes a real magazine, or just "reality" TV?


[ Reply to This | # ]

How could SCO make such claims?
Authored by: Anonymous on Monday, October 17 2005 @ 08:56 AM EDT
IBM CC9. The old one.

[ Reply to This | # ]

IBM Unseals Two Declarations
Authored by: Anonymous on Monday, October 17 2005 @ 09:05 AM EDT
Why doesn't the SEC get involved at this point in regards to Forbes/SCO possibly
being in cahoots on a stock manipulation scheme?

[ Reply to This | # ]

Our ever changing language
Authored by: grundy on Monday, October 17 2005 @ 09:24 AM EDT

Over the years (2.5?) that I have been watching, there has come a
significant change to the meaning of FUD: where once it was a TLA for
"Fear, Uncertainty and Doubt" and a noun for the sneaky implications
that caused them, it has recently become a simple noun meaning
"Barnyard Splats" (i.e. bull pies) and could be taken for a TLA of
"Falsehoods that are Utterly Despicable" (or the equivalent).

The point to this is that we may all now use Fud as an expletive in
place of the more common, but disallowed, word.

[ Reply to This | # ]

IBM Unseals Two Declarations
Authored by: Anonymous on Monday, October 17 2005 @ 11:18 AM EDT
If company M funds company S for the purposes of encouraging a Lanham Act
violation, can company M be sued as well?

If so, how hard would it be to show Microsoft as conspiring in a Lanham Act
violation?

[ Reply to This | # ]

The SCOundrels read Groklaw?
Authored by: the_flatlander on Monday, October 17 2005 @ 11:20 AM EDT
PJ wrote: "I know, you'll say that they don't read Groklaw. My stars,
children! They fairly dote on my every word. So that can't be it."

They dote on your every word? I don't see how that could be true. Oh, sure, I
understand, they spend most of every Investor Conference call talking about
Groklaw, and they seemingly have their friends, (both of them), out beating the
bushes trying to track you down, but frankly the evidence that they read Groklaw
is inconclusive, at best.

Consider: If they read Groklaw, they would have realized that they are lying
SCOundrels, but they act as if they are unaware of that. If they read Groklaw
they would know that winning a motion on discovery is not the same as winning
the lawsuit, but, again, that doesn't seem to be their take. If they read
Groklaw they would realize that only evidence presented to the court counts in
court. If they read Groklaw they would understand that the lawsuits are doomed
and that IBM and Red Hat will take away whatever assets haven't aleady been
given to the lawyers, and that fleeing the country is their only hope; but they
are still here.

If they read Groklaw, then they have a *serious* comprehension problem.

The Flatlander

[ Reply to This | # ]

The Forbes viewpoint.
Authored by: Jaywalk on Monday, October 17 2005 @ 11:39 AM EDT
But, is Forbes Mr. Lyons' personal blog? If not, are his personal opinions, hates and loves, supposed to show so blatantly? Just asking.
The fundamental purpose Forbes serves has nothing to do with the news. It exists to feed the wet dreams of executive washroom wannabees by supporting what is, fundamentally, an Objectivist philosophy. Any self-serving profitable competitive enterprise is good, anything else is bad.

And, of course, the poster child and patron saint for that mindset is Bill Gates. Anything Gates opposes is a heresy to be stamped out. Especially horrifying is the heresy of FOSS and Linux. This is something that is given away for free, developed cooperatively by an assortment of businesses and individuals. And it's kicking the butt of software produced by a competitive model. Lyons, as an apologist for the Forbes mindset, can be relied upon to report any information -- no matter how speculative -- that supports SCO and to ignore any that supports Linux or FOSS.

Eventually they will get their tiny little minds wrapped around the FOSS concept and figure out how it "proves" they were right in the first place. But, until that happens, they will continue to fight FOSS tooth and nail.

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

PJ, do you have the docs yet?
Authored by: Anonymous on Monday, October 17 2005 @ 11:57 AM EDT
I work not too far from the courthouse, and I could probably try to run by
today. It would be evening before I could scan them, though...

MSS

[ Reply to This | # ]

IBM Unseals Two Declarations
Authored by: Anonymous on Monday, October 17 2005 @ 06:48 PM EDT
Is it my imagination, or would I be correct in thinking that IBM could subpoena
the 2 identified "journalists" (I use that term in it's most broad
sense with no intention of maligning the profession) as witnesses in respect of
Lanham Act counter claims?

I for one would like to hear them explain in the witness box exactly how they
exercised due diligence when compiling their "articles" and their
exact relationship with the defendant (SCO). For it seems to me that if they put
one foot wrong the court may perceive some sort of conspiracy (which not just
the court, but the SEC would be interested in) and in circumstances where one of
them tried to intervene in the case.......then it could go very badly for them.


Not being a legal eagle would anyone like to comment on this - probably wrong -
thought?

Thanks.

========================
..still trying to remember that darn password......

[ Reply to This | # ]

IBM Unseals Two Declarations
Authored by: blacklight on Monday, October 17 2005 @ 11:49 PM EDT
This may be seriously off-topic, but I can't help asking everyone if they have
heard anything from SCOG's "marketplace initiative" last year, when
SCOG was trying to demonstrate that SCOG's profit motive (I would more
accurately call this motive "greed" because while I do have a profit
motive, I have not as yet let my profit motive degenerate into greed). Since
SCOG's top management has not mentioned their initiative at any of their last
four quaterly earnings conferences, I have to surmise that their initiative died
a somewhat inglorious, isolated and lonely death.

[ Reply to This | # ]
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