IBM Subpoenas HP, Baystar, Sun & Microsoft

nicolaiplum writes "CNet is reporting that IBM is sending subpoenas to HP, Baystar, Sun and Microsoft requiring them to disclose most of their dealings with SCO over UNIX licensing and litigation." From the article: "The subpoenas demand that Microsoft, HP, Sun and BayStar hand over a range of information, including details of their dealings with SCO, by March 7. They will also have to appear in court later in March to give depositions." Groklaw also has links to each of the subpoenas.

Don't have to appear in court

The reporter got that aspect wrong. Read the original documents and it becomes clear that the recipients are "commanded" to appear in various lawyers' offices.

Re:Don't have to appear in court

... "commanded" to appear in various lawyers' offices.

At which point they will be "commanded" to bend over and grab their ankles for IBM. Suddenly secretely supporting a company to launch a bullshit attack on a competitor doesn't seem so funny. And also picking a legal fight with the company that tied up the Justice Department with so much legal bullshit they gave up on their antitrust suit probably wasn't the best idea either.

In other news.....

the entire supply of Immodium for the state of Utah is missing.

Re:In other news.....

> In other news...
> the entire supply of Immodium for the state of Utah is missing.

Immodium AD: When you're know you're full of shit, and you desperately, desperately, want to keep it that way.

a well-known fact.

Microsoft bought thousands of SCO licenses [google.com] in an effort to undermine Linux -- not as a way of giving credibility to any of SCO's claims, but rather as a way to fund SCO's FUD campaign, in what amounts to a cash donation!

If anything should be subpoena'd its Microsoft's internal documents giving a risk/benefit analysis of making a cash donation to SCO in the form of to-Microsoft useless Linux licenses.

Re:a well-known fact.

Well that's not the only reason IBM is calling Microsoft to the stand.

IBM wants everything Microsoft has on the SCO/Linux battle partly because SCO CEO Darl Mcbride was emailing Microsoft regularly over something that's not quite public yet, immediately prior to the lawsuit, and also IBM needs everything Microsoft has relating to Unix because SCO gave M$ and Sun a clean bill of health as regards Unix. IBM might be trying to compare it's practices relating to the Unix code base against those of Microsoft and Sun in order to show that it was at least as compliant as those two.

Re:a well-known fact.

IBM found out about the emails in discovery for SCO vs IBM.

As for what's in the emails, well that's subject of speculation. It might be about the $10 million worth of Unix licenses that Microsoft 'bought' and SCO lied about in their court or SEC filings. It might be about the $50-70 million worth of funding from Baystar that Microsoft helped put SCO's way (that's documented in the Halloween documents somewhere on catb.org) for no apparent reason. Or it might be that Bill Gates was doing some babysitting for Darl or something. You'll just have to watch the court filings for clues.

Re:a well-known fact.

It is illegal to use anti-competitive acts to maintain or extend a monopoly. Microsoft has been found to have a monopoly.

Re:a well-known fact.

Yes, but if TSG didn't provide them with anything in return (especially if TSG's only business at the time was lawsuits) then Microsoft (like anyone who donates towards a lawsuit) has to pay the costs and damages awarded to IBM, Redhat et al if^Wwhen TSG loses if^Wwhen TSG goes bankrupt.

Also, depending on the local laws, MS and TSG may be prosecuted for maintenance (the supporting of a litigant by a third party that enables the litigant to carry on a claim when they otherwise would be unable to and/or where the third party does not have a bona fide interest in the suit), barratry (inciting a third party to take out groundless or repeated claims against other third parties), or champerty (maintenance with the hope of profit for yourself). Even in states where these are not unlawful, doing them clandestinely may be.

Oh...and don't forget that MS is probably in contempt of the court's anti-trust ruling in DOJ v. MS...oh...and that the SEC were investigating possible offences of money laundering between MS, the Royal Bank of Canada and TSG.

Turn about is fair play

If you buy in to the theory that MSFT funded the SCO follies in part because they wanted to slow the adoption of Linux in light of the delay in fielding Vista, then it's only sweet that IBM would be dropping on Redmond in time for MSFT's dirty laundry to get a good airing in court before the big roll out this fall.

Talk about a turd in the punch bowl. Hehe.

Depositions

They will also have to appear in court later in March to give depositions.

Actually, the depositions will occur at law offices near the headquarters of the companies in question. Microsoft's, for instance, will occur in Seattle.

This is very big

Judging by the number of comments on the story over at Groklaw, this is the biggest news we've had in a long time. We've all suspected that Microsoft had some hand in this. When they answer the subpoena, we'll all finally find out. This is the 'piercing of the corporate veil' that we've been waiting for.

Re:This is very big

They may not need to win. MS certainly doesn't want to get DoJ investigations restarted again, and using SCO as a sock puppet to beat down on a potential rival sure is risky in terms of monopolistic practices. MS wants to avoid possible DoJ issues and get this whole thing buried? Well, write IBM a fat check, and consider them satisfied.

I forgot about this!

Damn! It has been so long since any new developments or any old discussion has been brought up about it, finally there is some interesting activity in the SCO v. IBM case. Still, I have to wonder why IBM is willing to spend the money for the additional activity? Is "fighting back" worth it? What do they expect to gain on this?

Personally, I can identify with wanting to fight back by exposing the sources of all the scuffle. But if I didn't have money to throw away and no easily identifiable profit motive, I just can't imagine myself doing it. Since corporations generally lack human emotional response, I can only assume there is good strategety and/or profit motivation. Anyone care to speculate?

Re:I forgot about this!

It's not so much Windows "killing" OS/2 -- IBM can live with that in a fair fight. It's that Microsoft was parternered with IBM on OS/2, and saying nice things about it, right up until the eve of the Windows introduction.

Microsoft not only sucker-punched IBM on that, but also all the 3rd-party application vendors who were diligently developing for OS/2, leaving the Windows field wide open for Microsoft's Office apps.

The reason

Microsoft and Sun paid tens of millions of dollars to SCO in early 2003. Caldera (who is now SCO) had run their Linux business into the ground and after purchasing the UnixWARE from Santa Cruz in 2001 (to purportedly make Linux and Unix play better together), they ran it into the ground as well. Without that influx of cash, SCO would not have had the money to pursue the lawsuit against IBM. It just happens that SUN (IBM's largest Unix competitor) and Microsoft (who has a lot to gain from the discrediting of Linux) paid tens of millions of dollars to SCO and the only substantial thing they got in return was the lawsuit against IBM. IBM is also seeking information from SUN and HP because SCO gave them a clean bill of health, and they have distributed and made public much of the information that forms the basis of the lawsuit against IBM.

I didn't realize that

But I found it [newsforge.com]:

"There were hundreds of encumbrances to open sourcing Solaris. Some of them we had to buy out, others we had to eliminate. We had to pay SCO more money so we could open the code -- I couldn't say anything about that at the time, but now I can tell you that we paid them that license fee to expand our rights to the code,"

That really puts a hurting on SCO, IBM is probably after the evidence of this as well. SCO has pretty much given up on proving copyright violations, if you look at their oppositions to IBM's 10th counterclaim and more recent filings, they actually had the audacity to say that it was never about copyright. Anyway, their current theory is that IBM violated their contract with AT&T because they gave Linux inside information about how UNIX works, enabling it to grow much faster than it should have. Of course they have admitted themselves that there were no trade secrets left in Unix (Kevin McBride to Judge Wells in open court) when they dropped their trade secret claims back in early '04. So they are claiming that some intangible and indefinable quality of UNIX was given to Linux by IBM in violation of their contract. If SUN is open-sourcing Solaris with SCO's blessing, they really can't claim that IBM did anything wrong.

Re:I forgot about this!

Still, I have to wonder why IBM is willing to spend the money for the additional activity?

Because the drama, oops I mean SCO vs IBM case, is not over. It is still in the descovery process.

From http://www.groklaw.net/article.php?story=200602212 20214214 [groklaw.net]

22-Dec-05 - Final Deadline for Parties to Identify with Specificity All Allegedly Misused Material

27-Jan-06 - Close of All Fact Discovery Except As to Defenses to Claims Relating to Allegedly Misused Material

17-Mar-06 - Close of All Remaining Discovery (i.e., Fact Discovery As to Defenses to Any Claim Relating to Allegedly Misused Material)

As you can see, we're in the part that I've highlighted in red [bold], which is over on March 17. It's all about defenses now. In other words, SCO filed it's list of ha ha allegedly misused material, and now IBM gets to do discovery to establish its defenses. Don't forget the expert witnesses also:

14-Apr-06 - Initial Expert Reports
19-May-06 - Opposing Expert Reports
16-Jun-06 - Rebuttal Expert Reports
10-July-06 - Final Deadline for Expert Discovery

Oblig. Simpsons

Microsoft's lawyer... um, I mean Lionel Hutz: 'Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."'

IBM doesn't play

IBM scares the crap out of me and i'm just a hacker-in-a-cube. Reminds me of a joke that went something like when we're all standing in line at the gates of heaven God's going to say "ok you can come in" then look over at IBM's legal department for a knod before actually opening the gates.

Re:IBM doesn't play

Yeah, when all this is over and the books are written, SCO's choice of targets for lawsuits is going to go down there as sensible as invading russia proved to various european nation states over the centuries.

First they pick IBM, who probably have more lawyers than R&D engineers. Then, for collateral damage, they pick on a car company, what was it, Daimer-Chrystler. I mean, car companies. They have legal departments on 24-hour call waiting to dismiss the classic "I ran over a bus queue of 8 people while drunk, it was the fault of your ABS system" lawsuits coming in every day. Having someone sue you over linux violations is just a spare time activity.

On the other hand, from the lawyers perspective, going up against well funded legal departments guarantees large amounts of cash coming your way...

Good comments at Yahoo Finance board too

The SCOX Yahoo Finance Board [yahoo.com] is actually a good source of information and comments as well. Contrary to the usual stock board the regulars there are quite knowledgable and try to keep the spam cleaned up. Which is not to say there are no trolls, but any rating above a 4 is usually good.

sPh

Not yet??

Why have I not seen a comment yet that said

And in Redmond today, a chair flew out of Ballmer's office and a scream was heard "I'm going to f*$#ing kill IBM!!!!!!"

Oops..I just made it.

Conspiracy?

So will it end up all being a conspiracy masterminded by Microsoft to kill Linux? But Microsoft always plays fair, who would have thought!

Expect More Delays

Depositions rarely go on the date set forth in the subpeona. You can expect delays in getting the documents requested which are needed with time for examination before taking the depositions. That's pretty much par for the course in civil litigation; you set an arbitrary date and the parties later agree on the real date. The more interesting question is why IBM waited until now to request this info. If they wanted to assert additional claims against MS or Sun, it's pretty late in the day to be adding parties to this litigation; that would only further delay things. You can be sure there is a definite reason for issuing these subpeonae now. My guess is IBM may have recently come by some new info, probably from some insider and probably in the form of some smoking gun documents. They must now feel justified in pursuing this line of inquiry more aggressively even though there is a potential for delaying the resolution of this case if they attempt to assert new claims against MS or sun in the sco case.

Order in the Court

Bill Gates on the stand: "Well, you see, it went like this your honor, App..."

Steve Jobs yelling from the courtroom: "Shutup! Shutup now Bill!!!"

Judge banging gavel: "Order [bang, bang, bang] There'll be order in the court room!"

RMS standing and asking for calm: "Judge. Notice that I did not call you 'Your Honor' as I do not honor the authority that you claim to hold. I will not place my hand on a Bible and swear to tell the truth. The Bible is a book of fairy tales and fables for which I hold no respect..."

Steve Ballmer jumps to his feet and grabs a chair: "Jesus H. Christ [Throws a chair at RMS] This guy is a fuckin' loon... how the fuck did he get in here?"

So this means we can read the depo?

In theory onces this goes to court, that means we can read the deposistions right? All the material and evidence (depositions) would then be a part of the public record right?

It would be great to read what they are actually talking about and see how both sides see this issue, not just what the online press conjectures about everything.

Nice

Point #12 on the subpoena to Microsoft:

Microsoft's business strategy regarding Linux.

I'd love to be in the room when they cover that.

Litigation, at what cost?

This will cost IBM countless of millions of dollars over the next few years. Wouldn't it be cheaper to spend a few grand and pay Bruce Willis to kill Gates and Ballmer? Or why not build a terminator? Oh yeah, it would have Lenovo parts and turn on the americans in a blink. Darn chinese are too smart.

Subpoenas

We should all remember, Subpoenas are a commonly utilized legal term which is needed to get another party to comply. Most large companies are not even allowed to give any of their documents (which have other legal bindings on them, probably for non-disclosure) without a subpoena. People just tend to think "subpoena omg"

mirror

I created a mirror [klaproos.net] for the subpoenas, including easy to read html versions.

To hell with /.'s coverage

I want to know what Rob Enderle has to say. I haven't heard much from him lately and I need his "forward looking emerging technology advisory firm" and the insight only they, ok - he, can give.

Mr. Enderle, are you there? Should I be concerned that IBM is stealing all the thunder while SCO continually gets bitch slapped out of the headlines (and court)? SCO is still going to school the technology world, right? You predicted they have a solid case and not to rule them out. Are they still a sure bet? After all IBM is the unethical company in all of this because you told me so...and that's stronger than Bible in my book anyday.

Re:To hell with /.'s coverage

Auto-reply from Robert Enderle:

I would like to say that I never made any speculation on SCO and that I simply meant they should have their day in court. I stand by those statements. Linux lunatics are simply outrageous in their claims against corporations like Microsoft, so they should just submit brokeback. I got an email from a guy, whom I assume was truthful, telling me how he received 300 letters of hate mail from Linux zealots for backing up SCO in a groklaw article. This is just lunacy! When some infantesimally small percentage of loyal users just can't take the rational way out, that tells me to never use the product they support. I simply want to level the playing field, to show that Microsoft and Linux are equal. The executives at Microsoft are good people. Bill donates his personal time and money to stopping worldwide disease. Executives who do this are good people, regardless of whether they turn their offices into WWE wrestling rings, forget to wear antiperspirant, or use death threats when intoxicated. SCO simply is the little guy and should win. Well, it should win because it defends the almighty intellectual property laws. Let's forget any interpretation from some Constitution drafted 230 years ago that IP laws should be for the "progress of arts and sciences." This is 2006, not 1787. If they had computers back then, they would certainly have stood for free market and the protection of that value via software copyrights and patents. The fact that IBM is winning this case so far only goes to show how much they have bribed the courts and are using their influence unfairly. I think both sides have made mistakes, but I'd much rather be controversial to get more site-hits, so I'll only point out the fact that IBM is just a big-bad big-business called big-blue, so they must die and roll over to the freedom fighters at SCO. McBride is a Mormon, and mormons are all good people, so that argument is just outrageous, that he would be unethical. The business machine at IBM is only interested in profit and wishes to milk everyone for everything in order to attain that goal. So, despite the judge remarking on the utter lack of evidence presented by SCO, and the fact that IBM is supporting Linux, which I hate only because I instigated a flame war with Linus Torvalds, which he won, and which I should have not picked at the time. He was 20 and I was much older, but he had made some crack about software patents being mathematical constructs. I just couldn't let him and his Linux fringe lunatics attack me with their inflated rhetoric. So I flamed him. I was right though, because now I get hate mail daily from Linux zealots, so despite the fact that I call Apple a company led by and used by fruits, and despite the fact that I write anti-Linux messages all the time with the premise of being "fair and balanced," I was ultimately right about Linux zealots, so I will be right about SCO. Please excuse me from the office for a few weeks: I am organizing a fund raiser to provide SCO all the legal support they need.

Sincerely,
Rob Enderle

This may be premature. . .

. . . but wouldn't it be great if our buddy RICO made an appearance as a result?

Just look

Maybe It's only bussinese trick.

BayStar?

All you'll get from that subpoena is a squadron of Cylon Raiders!

Msft/scox have already won

For nearly three years I've been rolling my eyes after reading these comments like: "oh yeah, scox is gonna get their ass handed to them now." Scox will likely lose the case, but that is immaterial. People still continue to adopt Linux at about the same rate, but that is also immaterial.

Msft is sending a message to those companies who might dare to contribute to Linux. The message is: "if you contribute to Linux, expect to be tied up in court for the next five years. And expect to spend $100M in legal fees, and expect to have some sleezy Utah penny-stock scam company digging through all of records, expect endless and pointless "discovery." Expect depositions, and expect to bashed in the tech-pop-media, and expect other endless hassles." From now on, contributing to Linux is not something that you just casually do. Clearly, this will slow Linux development.

The entire scam is costing msft less than $100M, hardly more than a few of their idiotic, and ineffective, commercials. Even if IBM sues msft, it will have been worth it for msft. Forget the DoJ, the USA government works for msft.

The scam is also working out well for scox. Who else would pay darl $1M a year? When darl took over, just before the scam, scox's market cap was under $6M, now it's over $80M.

So, while the groklaw cheerleaders gloat about scox's great defeats; the execs and msft and scox are laughing up their sleeves.

IBM also subpoenas Houlihan

This thang is hotting up.

GL reports [groklaw.net] that IBM have now subpoenas Houlihan Valuation Advisers which did an evaluation of Caldera before Darl took over and started the lawsuits.

The evaluation concludes (in contradiction to what TSG told the judge) that "the recent overall financial performance of [Caldera/TSG] was inferior to that of the average company in the industry in many respects. Its income statement was weaker in terms of gross sales, operating margin and net margins; its asset composition was less liquid; fixed asset and total asset turnover ratios were lower indicating less efficiency in operations; and its profitability was considerably lower." You get the idea.

It also concludes that GNU/Linux is going to drive Unix systems out of the market based on it being a better product.

One has to ask the question why the hell did they start the lawsuit?

Re:Conspiracy. The where is Steve Jobs?

What did Steve Jobs have to do with SCO? As I recall, he would have been at NeXT and Apple, working on NeXTStep/OS X when all of this went down. He'd have had his hands full and no time to worry about Linux when he's trying to save Apple. Not to mention why attack Linux when it's going mostly after MS and not Apple? OS X is part-Unix, not necessarily part-Linux, right?

Obviously, you've never heard of a Blue Gene . . .

Y'know, the fastest supercomputer on earth, invented and manufactured by IBM?

Comes with SuSE. I'm a contractor at IBM's Rochester facility; guess what I get to play with all day?

BTW, since IBM manufactures POWER architecture machines, doesn't it make more sense for IBM to trundle their AIX product with the servers? From a support standpoint, it makes perfect sense. However, we do provide support for LINUX on POWER architecture here. LINUX is freely downloadable, AIX isn't. If we provided LINUX with servers, that's all the choice a customer would have. By providing AIX, we give our customers more choices.

And remember, unlike certain OTHER OS products coming on the market (no names, but the initials are Microsoft Vista), there will be no attempt to lock users into the OS which ships with POWER architecture hardware.

Think twice, enter once.

Re:I'm going to have to cheer on IBM here

Godwin's Law now in effect. Thanks for playing.. now go sit down. :-P

Re:SCO and IBM are both the bad guys

"and despite their hype on Linux, less than 1 percent of IBM's servers ship with it."
But I think you are free to choose to order Linux on just about any of them. I thought that was the idea to be free to choose.
I used to HATE IBM back in the good old days. Between Eclipse.org and all the Linux resources they have on line I am an IBM fan.

Re:Conspiracy. The where is Steve Jobs?

He belongs in this rouge's gallery.

You want Steve Jobs in the makeup aisle? I don't get it.