Now What Happens? -"Reading the Leaves" By Webster Knight, Esq.

Saturday, December 06 2003 @ 09:30 AM EST

Contributed by: PJ

I asked an attorney friend, Webster Knight, the important question: what happens next? We've seen the judge's order, but what does it mean? What are the possibilities? What might SCO do now? It is always risky to predict legal outcomes, but as it happens, my friend privately predicted exactly what happened yesterday. So it seemed like a good idea to pick his brain again, and this time to share it with you, especially because I noted all the comments asking the "what happens now"question. Here are his thoughts on yesterday and what it means for SCO and what could happen next.


~by Webster Knight, Esq.

Friday was a walk over victory for IBM. They didn't have to say anything. They didn't even have to be there. The Judge stated what she intended to do, gave SCO their fair hearing, then did what she said. IBM's Motions were granted, SCO's was not.

The Court has given SCO thirty days to comply with IBM's discovery demands in the way IBM wants it. That is a hard thirty days. Assuming that the reports we have received are accurate, the Court said if they needed more time for the hearing, that could be changed. They still only get thirty days to comply with the discovery. If they want more time, they are going to have to show substantial compliance and even get IBM to consent to an extension. Their time has come to show the evidence.

Groklaw's reporters were fast and accurate. Their impressions were certainly corroborated by the decision. IBM's presentation came through as masterful and concrete. Their point with the two bound volumes, one big and the other small, was easy to capture, hard to forget. It was not a question of substance over style. IBM had both; SCO neither. When the transcript is posted on Groklaw, I won't even feel the need to read it. [PJ: Web! We're paying a hundred dollars for that transcript. You have to read it. Kidding. I know what you mean.]

The leaves at the bottom of my cup spell out "Boies." Where was he? Why get a celebrity lawyer and not use him? Why would he allow himself, as the marquee lawyer, to be so behind the scenes? Is this what you get for the 10 million interim fee? I guess the client doesn't mind; they got 40 million from that deal. But why is he missing from action? Are they saving him for the real trial? With days like today, they will never get to the real trial.

The leaves have settled and shifted. They spell out ethical and reputational considerations. Is Boies now worried about the state of SCO evidence? Are they going to pull out all of their aces on the thirtieth day? Why stonewall and play games with the Court on an issue that wasn't even close, as the day shows? Is he distancing himself from their evidence and this case? Does he lack confidence that SCO people can prove their claims against IBM and Linus, who know who wrote every line of the whole kernel? Does he consult Groklaw and realize SCO doesn't know the provenance of its own code? Doesn't he want to stake his reputaion on them? Is his own standard of proof preventing him from presenting half-baked claims of code and methods that will wither before open scrutiny as have all disclosed claims heretofore? Is Boies saying this should be settled because this is as far as I can go? Does he worry about his name and ethical standards?

I'm sorry, dear readers, these must be SCO leaves because they give me no direct answers.

SCO must now turn their reluctant eyes to The Code. Everything they now disclose, if they do, has likely been copyrighted and distributed under the General Public License --distributed BY THEM. They will then have to try to convince the Court to disregard their nine years of distributing Linux under the GPL, pleading incompetence, I imagine. They will also need to convince the Court that US copyright law must be reinterpreted to invalidate the GPL. If they try to do these two things, they will be laughed out of court. If they can't do these two things, they will be laughed out of court, not that an IBM Motion for Summary Judgment is anything to laugh at. I am not sure IBM even needs discovery to file it, since the GPL seems to apply to every conceivable line of code in question.

My leaves stop at the GPL. Speculating beyond the GPL takes one into contracts, methods and secrets, numas, jfs, and "ixes" like UNIX, AIX, DENIX, XENIX, and I'll leave that part to others.

Like the Courts likely will, I will stop with the GPL.