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Article

CSN Asks Judge To Unseal the SCO-IBM Court Record

If SCO's Case Proved, It Could Derail The Linux Market and Take The Open Source Movement Down With It

Client Server News and LinuxGram, its sister publication, have asked the Utah district court hearing the SCO Group's $5 billion suit against IBM and IBM's subsequent counterclaims to open all the filings that have been sealed.

SCO's suit claims IBM improperly incorporated aspects of SCO's Unix operating system in Linux. If proved, it could derail the Linux market and take the open source movement down with it.

Our motion to intervene cites the fact that Linux is an inflection point for the industry and that any question of its future is a matter of intense public interest.

However, the public has lost any real insight into the case because of a so-called stipulated protective order that SCO and IBM signed in September of 2003 that has let either of them unilaterally designate discovery material as "confidential."

As a result, a large part of the case has been sealed, especially the substantive and material parts.

IBM is believed to have been particularly free with the seal.

Our motion to intervene contends that the protective order, usually reserved for trade secrets whose disclosure could be competitively damaging, may have been abused and that the material that has been put under seal has never been shown to be really confidential.

It argues that merely protecting potentially embarrassing information that the parties "do not want the public to see" violates the public's common law right of access to judicial records and its First Amendment right to oversee the judicial system.

The nine-page motion, filed today, asks that the protective order be modified to keep the record open going forward or that the parties be required to demonstrate a genuine need to seal each document.

It also asks the court to open any correspondence that SCO and IBM have had with the court that is not reflected in the clerk's file and to open all transcripts of court hearings that have been sealed.

Our lawyers, Jones, Waldo, Holbrook & McDonough, a Salt Lake City firm experienced in First Amendment matters, is prepared to argue our case in court.

  • SCO vs IBM Update: Ball in IBM, SCO Court
  • IBM Tells SCO Court It Can't Find AIX-on-Power Code
  • SCO Finally Makes Groklaw's Mistress Blanch
  • More Stories By Maureen O'Gara

    Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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    Most Recent Comments
    hot sauce 12/01/04 12:12:04 PM EST

    Folks be sure to have your adblocker software installed when visiting this site as that is what fund this fud...

    Bruce 12/01/04 11:54:40 AM EST

    Clearly many people feel threatened by open source: an understandable position if your business model looks to have had the rug yanked out from under it. This fight between proprietary interests and the open source community will be decided by the markets, not the courts, and the SCO debacle will have no effect on it. It might, might, have an impact on Linux (though I don't think so) but it cannot have any affect on OSS in general. The case simply does not apply.

    AJ 12/01/04 11:24:01 AM EST

    To add to my previous comment, www.linuxbusinessweek.com runs (as far as I can tell) Linux, Apache, and MySQL. All of which are OSS.

    AJ 12/01/04 11:18:41 AM EST

    "but could you please tell me if Linux is gone for some reason, what is left in OSS, Solaris?"

    You're kidding, right? Please tell me you are, or that you are new to the OSS community. There's the projects mentioned a couple posts up and there's also the the 90,000+ OSS projects on SourceForge. Nowadays, it's almost impossible to use a computer and not come in contact with OSS in some way. Whether it be viewing a webpage hosted with Apache or connecting to the internet through a gateway running Linux, OSS is everywhere and no matter what people like SCO, MS, and all their loyal minions do, it's not going away anytime soon.

    Chris from canada 12/01/04 11:09:37 AM EST

    I think we're all missing the primary motive for MO's rantings. It's simply $$$. Kinda like those crappy news shows... it's all about ratings.

    the more ridiculous stuff she says, the more likely it is to be mentioned on groklaw and other forums, which leads to more people coming to her pages, which leads to more hits, which leads to more $ from advertisers.

    basic math.

    Dwidget 12/01/04 10:54:20 AM EST

    Hey, Jeff Merkey!

    No offense, but you are in need of professional help, long extended stay type help.

    But then again, I am not sure that that would really even help you, so sorry.

    What OSS is left without Linux 12/01/04 10:51:55 AM EST

    Just a quick start currently on my *Windows* box.
    Apache,PHP,gcc,GIMP,JED,OpenOffice,Squid,Firefox,Thunderbird,cygwin...

    There are actually too many OSS packages on my machine to bother counting, none of them threatened by losing Linux.

    Jim Hogan 12/01/04 10:46:32 AM EST

    Trying to read this Web site makes my eyes hurt, so I confess I did not read this story all the way through. Still...

    Maureen, whatever anyone says, keep writing!

    Without your efforts, reading Groklaw wouldn't be half as much fun!

    AJ, I agree with you 100% 12/01/04 09:49:54 AM EST

    but could you please tell me if Linux is gone for some reason, what is left in OSS, Solaris?

    AJ 12/01/04 09:41:01 AM EST

    Well, O'Gara has definately shown that she is clueless when it comes to OSS. Linux is Open Source, Open Source is NOT Linux. Even if Linux dies out completely (which it won't), Open Source software will still be alive and kicking. But then again, the entire article shows she is clueless in general. It only makes sense that much of the discovery would be confidential, as much of it is most likely company secrets. Even though I'm sure SCO has other motives, this entire case is technically only a contract dispute between 2 private companies. Will the outcome affect Linux? Most definately. But the public isn't nessecarily entitled to know anything in a dispute between 2 private companies. My suggestion for O'Gara is this: learn about something before you try and report on it.

    Michael 12/01/04 08:33:09 AM EST

    Obviously a lot of SCO employees have adopted this as the place they hang out these days. Probably the software team; now that SCO has turned into nothing but a litigation engine, they have lots of free time on their hands, and they compose almost the entire population of people who still admire Maureen O'Gara's "unbiased reporting".
    And this site's name (Linux Business Week) is apt, since it's intent is to put Linux out of business. Kind of like the Nazi Party publishing "Jewish Business Week".

    Steve Grant 12/01/04 08:29:55 AM EST

    Wow. These comments are insane! Oh wait...half of them are by the fabulous Jeff Merkey. Never mind.

    Amadeo 12/01/04 08:29:49 AM EST

    People are really angry here. I am interested to know if PJ is not really Pamela Jones, but somehow, I don' t think this is true.
    What I think it is true: Groklaw got MOG writing stories without checking the facts. MOG is angry, and lost her mind. Her friends are posting this absurd stories here, since they cannot post it as a news story since it is not true.

    pj 12/01/04 08:25:06 AM EST

    thank you Jose, very sweat of you

    Jose, my friend 12/01/04 08:10:55 AM EST

    "Who cares if PJ is really O'Gara's father and secretly funded by the Masons? It doesn't matter."

    Think about what you just said.

    JS 12/01/04 08:09:27 AM EST

    Let's see ... O'Garashill writes an article a while back saying that when SCO gets a certain document unsealed OH BOY is IBM in trouble!

    Now O'Garashill informs us that 'for the public good' they have filed a request to get that document unsealed for SCO. A document that will end Linux, time, and space as we know it.

    *Yawn*

    I'm sure it will be yet another case of them pointing and shouting, "See! This proves they cheated us!" and the informed members of the industry sighing collectively and replying, "No. It means, once again, that you idiots have no grasp of what you own."

    the next episode 12/01/04 08:07:35 AM EST

    "Our lawyers, Jones, Waldo, Holbrook & McDonough, a Salt Lake City firm experienced in First Amendment matters, is prepared to argue our case in court."

    will be featuring PAMELA JONES! PJ will make a guest appearance in Utah after receiving a deposition from the court. Excerpts from the script.

    Judge: Ms. Jones, nice skirt but could you explain the court, what's the deal with the mustache and the beard?

    PJ: Your honor, I was in the hiding for a long time, I did not get a chance to shave. They dragged me to this cort unprepared.

    Judge: Adjourned! Ms. Jones you must please decide now. Either the skirt and the lipstick, or suit and the beard. What's your decision? Oh, by the way, please trim that mustache.

    more to come in the next episode

    Jose 12/01/04 07:59:35 AM EST

    What wild set of comments. I didn't think people could get this lost in the irrelevant. Who cares if PJ is really O'Gara's father and secretly funded by the Masons? It doesn't matter. Groklaw is an excellent source of documents about the case regardless of your opinion of PJ's commentary.

    Geoff Stevenson 12/01/04 07:45:21 AM EST

    "Police - Cameras - Action". I recall in particular an episode featuring a drunk, highly aggressive female in a state of total denial.

    "I am NOT under arrest! I am NOT under arrest!" she screamed repeatedly as she was cuffed and placed in the squad car. Ms O' Gara seems afflicted by a similar state of denial, based on fanciful delusions.

    There's no limit to how stupid you're allowed to make yourself look though, Ms O' Gara, please feel free to continue.

    Pacer 12/01/04 07:40:58 AM EST

    "Does anyone know if FBI received an official complaint and started their investigation on this very subject yet?"

    No, not yet. I will get it for PJ as soon as it's filed. Wait a second, you are talking about a filing against Groklaw here, I won't do that. Someone please get me some more cool aide.

    PJ 12/01/04 07:29:34 AM EST

    "Naturally, I am of two minds. One, I hope she wins and some things at least get unsealed, because I'm crazy wild to read everything. But on the other hand, I believe in privacy, personally, and I don't think the public has a "right" to know everything. If that were the case my cool-aid followers would find out that I'm not the sexy Pamela they think I am but in actuality I'm Daniel Egger!! So, we should keep certain things private and courts should not disclose them."

    Ms. O'Gara 12/01/04 07:18:08 AM EST

    "If Ms. O'Gara would like to send me her legal filing, I'm happy to publish it in full for her. Or we can wait until Pacer has it."

    Ms. Jones, I will be happy to send my legal filing to you. Shall I put Care of: Daniel Egger on the envelope? Which address would you like me to send it to? Or, let's say, shall we wait until you are served your deposition in the hate crime case so I can hand deliver them to you in court?

    It says "private" you moron 12/01/04 07:08:54 AM EST

    and there is no Pamela Jones, take my word for it.

    Administrative Contact:
    Private, Registration GROKLAW.NET@domainsbyproxy.com
    Domains by Proxy, Inc.

    Have you ever registered a domain name in your life? You need to call (480) 624-2599, the phone number you pasted there and ask GoDaddy tech support, "who the private owner of groklaw is." If its your lucky day, you will find out his name is Daniel Egger, OSRM, 730 Fifth Avenue, New York, New York, 10019.

    Good luck and have a very nice day! :-))

    Speedy Gonzalez 12/01/04 06:44:04 AM EST

    what's the fastest anything's ever been posted on Groklaw after being obtained by Pacer, anyone know?

    Egg Plant 12/01/04 06:42:35 AM EST

    Ms. O'Gara, you flabbergast me. The conspiracy theories you and your loyal shills have put out are simply fascinating. Next thing you know, we'll have PJ torching the courthouse in Utah in order to see that the sealed documents in the case are *never* unsealed.

    Oh, and here's the domain listing from whois for groklaw.NET:

    Registrant:
    Domains by Proxy, Inc.
    15111 N Hayden Rd., Suite 160
    PMB353
    Scottsdale, Arizona 85260
    United States

    Registered through: GoDaddy.com
    Domain Name: GROKLAW.NET
    Created on: 03-Oct-03
    Expires on: 03-Oct-05
    Last Updated on: 06-Oct-03

    Administrative Contact:
    Private, Registration GROKLAW.NET@domainsbyproxy.com
    Domains by Proxy, Inc.
    15111 N Hayden Rd., Suite 160
    PMB353
    Scottsdale, Arizona 85260
    United States
    (480) 624-2599 Fax --
    Technical Contact:
    Private, Registration GROKLAW.NET@domainsbyproxy.com
    Domains by Proxy, Inc.
    15111 N Hayden Rd., Suite 160
    PMB353
    Scottsdale, Arizona 85260
    United States
    (480) 624-2599 Fax --

    Domain servers in listed order:
    NS.UNC.EDU
    NS2.UNC.EDU
    NCNOC.NCREN.NET

    So, where exactly, loyal shills, is the connection to OSRM with that domain registration, hmmmm?

    Drop the joints, folks, let your heads clear. Then you might see the facts for what they are, and they certainly aren't in SCO's favor. SCO's simple lack of any attempt to mitigate their damages in *any* of the cases pretty much tears up any chance of a win *anywhere*. SCO is doomed to failure.

    PublicityWorks 12/01/04 06:35:43 AM EST

    PJ also says at GrokLaw:

    If Ms. O'Gara would like to send me her legal filing, I'm happy to publish it in full for her. Or we can wait until Pacer has it.
    So, there you have it. Oh, and her lawyers are named Jones, Waldo, Holbrook & McDonough. I like to think she picked them because she's always been partial to the name Jones.

    We see all 9 pages very soon...

    sideliner4all 12/01/04 06:29:24 AM EST

    Over at groklaw, editor Pamela Jones has just written:

    "Naturally, I am of two minds. One, I hope she wins and some things at least get unsealed, because I'm crazy wild to read everything. But on the other hand, the court and the parties wouldn't seal things without a reason that seems good to them. I believe in privacy, personally, and I don't think the public has a "right" to know everything. Just because you get sued by some litigious company or individual, it doesn't mean you now belong to the public, hook, line and sinker.
    Well, I don't need to worry about it. That's what judges are for."

    flimbag 12/01/04 05:59:51 AM EST

    Hey Maureen,

    While you're pushing ahead for more openness in legal actions, do you suppose you could manage to persuade your buddies at SCO to reveal where the stolen code is in Linux?

    You know the stuff I'm talking about right? The millions of lines that the MIT deep divers turned up, that's hiding out in Gregory Blepp's briefcase somewhere in Bavaria?

    Perhaps we might even find the AIX on PowerPC code hiding in the same briefcase? Who knows? But I'm sure you could use your 'special relationship' with the big swinging todgers over at SCO to put us all out of our misery, right?

    The Grum 12/01/04 05:21:01 AM EST

    "If SCO's Case Proved, It Could Derail The Linux Market and Take The Open Source Movement Down With It"

    I LOVE unbiased journalism. Ms O'Gara, are you paid to hate OSS and Linux (2 separate things - take a note!) or is it just your personal preference?

    Andreas Kuckartz 12/01/04 02:27:23 AM EST

    Maureen O'Gara wrote: "IBM is believed to have been particularly free with the seal."

    Believed by whom? Nobody is surprised to read such a statement in an article written by an SCO propagandist.

    steve troxel 12/01/04 12:48:53 AM EST

    Uhm did anyone tell Madam O'Gara that there is more to open source than linux? however the titles choice reveals a total misunderstanding of open source, an over eager and transparent bias against open source software.

    Grendel2 12/01/04 12:32:42 AM EST

    Where are you lunatics getting this stuff from?
    Its Groklaw.net not groklaw.com neither one is shown
    as belonging to OSRM.
    "free to spread hate against Native Americans or any other race and ethnic group," What are you smoking? have you
    even visited groklaw?

    While Maureen Ohara restricts herself to partial quotes
    and selective paraphrases of things said in court, Groklaw
    and PJ ( Thats PAMELA Jones ) always copy and publish
    verbatim everything they are ALLOWED to print. Believe me
    just about every groklaw subscriber would dearly love
    to see everything in the court records. And the score on
    sealing records? 18 SCO vs 17 IBM. most of IBM's sealed
    records are responses to SCO"s sealed submisions.

    R. P. Hughes 12/01/04 12:20:56 AM EST

    For some interesting commentary regarding this story, go to:

    P.S. Speaking of multiple personalities, I've never seen Steve Balmer and Elmer Fudd in the same room together. Conincidence? Their bald heads, the "FUD" from Microsoft... It's all starting to add up!

    Not Jeff Merkey 12/01/04 12:14:18 AM EST

    But the insane ranting about hate crimes was.
    So Jeff, licked any good toads lately?

    Jim Jones 11/30/04 11:59:04 PM EST

    So let me see if I have your agrument straight...

    PJ is a MAN, bay-bee!

    I have some straws here....you may resume reaching.

    thegrendel 11/30/04 11:14:04 PM EST

    Even more telling would be "unsealing" Maureen O'Gara's
    (financial) ties to Microsoft.

    this is turning out to be very funny 11/30/04 10:32:12 PM EST

    this is turning out to be very funny

    I feel like we will soon see a crying Jimmy Swaggart like :-)) TV (Linux) evangelist character :-)) in women's clothing :-)) and begging for mercy and forgiveness from her (his) followers. :-)) Don't drink the poison cool-aid...

    Can you just imagine the scene? This could be too funny...

    OK Then... 11/30/04 10:29:12 PM EST

    http://www.enorivercapital.com/cgi-local/anchor.pl?pckt=meet

    "After selling Libertech in 1997, he (Daniel Egger) began acting as an advisor to and direct investor in other early-stage North Carolina IT companies"

    This is from Daniel Egger's bio at the www.enorivercapital.com web site which may suggest the link between the Groklaw web site and its University of North Carolina host ibiblio. After all we are in the same state now.

    Also in the above link, the first guy's initials are P.J. as in Paul Jones. Could our Groklaw blogger originally started as PJ and eventually turned into Pamela Jones? I mean Paul Jones with a typo? PJ and Daniel Egger are two managing partners of this Eno River Capital outfit in North Carolina.

    http://chronicle.com/free/2000/09/2000091201t.htm
    http://www.wired.com/news/roadtrip/0,2640,61200,00.html
    http://portal.acm.org/citation.cfm?id=503125

    Then there is this Paul Jones in these University of North Carolina news stories from 2000.

    We are upto 3 PJs so far, or is it still only two? Am I on the right track here? (Hey who was that, who said PJ was a stunning red headed beauty?)

    Who owns Groklaw? 11/30/04 10:23:54 PM EST

    I just read the story and all the comments here. I saw some questions still remains unanswered. Someone claims OSRM owns the Groklaw web site. Neither OSRM nor PJ came out and said that this is untrue.

    Then they need to explain after she said she quit her job, how come they still own her domain name?

    Also ibiblio is in deep dudu IMHO for getting involved, hosting, or being used by these groklaw gangsters.

    The person at the University of North Carolina who made the decision to host "groklaw.com" at a "government owned entity" may need to answer a few questions if "federal hate crime charges" are filed next week and the FBI and other government agencies start their investigation against the PJ gang and the people hosting their site.

    To live in a free society does not mean that you are free to spread hate against Native Americans or any other race and ethnic group, or I would even say trying to intimidate free press.

    Does anyone know if FBI received an official complaint and started their investigation on this very subject yet?

    There are also other comments here questioning the identity of PJ. I bet you the law officials know exactly where to find her if they need to. And then all those curious can find out if anyone really exists by the name of Pamela Jones or not. If there is such a person then her present and future employers can finally get a chance to see her face as well as, perhaps, her resume!

    Is PJ Daniel Egger of OSRM? 11/30/04 09:51:39 PM EST

    Five days after this story aired, here is a list of still unanswered questions:

    1) Is there a real person with a SSN by the name of Pamela Jones who is the author of the Grloklaw web site?

    2) Was this "real person" actually employed by ORSM and this "real person" then quit her/his job?

    3) Is the Groklaw web site and its domain name privately listed as owned by OSRM? Is OSRM the owner of the Groklaw web site?

    4) Is pj Daniel Egger?

    5) If he is, what is the story behind "quitting his job from OSRM and now he is a starving evangelist looking for part time work" at his Fifth Avenue prime real estate office?

    6) Was pj ever treated or currently under treatment for multiple personality disorder?

    7) What is the ibiblio link?

    8) How does all this help open source movement?

    9) Are all Groklaw followers, the entire community without a single exception stil keeping their heads burried in the sand? Thanksgiving is over. You can come out now.

    10) Will OSRM make an official statement, on the record, answering all these questions truthfully and one by one?

    rand mcnatt 11/30/04 09:47:05 PM EST

    So, where's the transcript of the filing? Unless you just want to wait and let Groklaw put it up with the Judge's inevitable reply.

    Oh, almost forgot:

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    Thanks. Just when we thought you were losing your laughing-stock status...you came through again.

    Shawn 11/30/04 08:57:06 PM EST

    So, will you report on SCo's imaginary infringing code in Linux as well, they have been very reluctant to show any of that publicly ever since it got debunked hours after they showed it.
    How much are they paying you to write these anyway?

    Dan O'Mara 11/30/04 08:37:43 PM EST

    Yep, I'm sure that's going to work out great.

    We're all waiting with bated breath for details of the nefarious plots hatched in Armonk.

    On second thought, perhaps we'll breathe after all.

    I remember the original story 11/30/04 05:43:54 PM EST

    SCO and IBM met in federal court in Utah again Tuesday for another go-round over the discovery that IBM hasn't produced in SCO's $5 billion lawsuit against it.

    At the hearing, one of SCO's lawyers, another young thing from Boies, Schiller & Flexner whose footwork was smooth enough to impress even Groklaw's IBM-dazzled observers, mentioned the little matter of SCO's days-old Third Amended Complaint, which, alas, is under seal reportedly because it's based on some e-mail that turned up during discovery that IBM now claims is privileged though there's supposedly no hint of attorney-client communication about it.

    Anyway, the sealed Third Amended Complaint has to do with SCO's contention that - to compete against Sun - IBM put SCO-owned SVR4 code in System 3-based AIX for its proprietary Power chip architecture - and one of the supposedly compromising IBM e-mails - that SCO just happened to read out loud in court the other day - suggests that IBM was conscious that it had overstepped the bounds of its Project Monterey contract with SCO, which was intended to produce only a version of AIX for Intel's Itanium chip (CSN No 564).

    Well, during the Third Amended Complaint discussion, SCO's lawyer held up a piece of paper - that was duplicated on a projection screen that only the magistrate judge, Brooke Wells, could see - that listed all of the AIX code that IBM has and hasn't turned over to SCO. And SCO's lawyer pointed out that the only piece of code that IBM hasn't come up with - which was highlighted in red - was the AIX-on-Power code - to which IBM's lawyer replied that IBM "can't find it."

    Shades of the Compuware suit. They "can't find it."

    Makes one wonders whether IBM looked in that closet in Australia where it said a few weeks ago it just happened to stumble over the source code - the source code it swore - literally swore in court for two years - didn't exist - the code that it was supposed to produce during the court-ordered discovery phase of the suit that Compuware brought against IBM for, well, for stealing its source code.

    IBM only managed to find the code after discovery had closed and the trial was about to start, a situation that it got its ears boxed for by the District Court for Eastern Michigan, which called its behavior "gross negligence."

    Magistrate Wells has yet to cross that bridge, however.

    After listening to what everybody had to say - and all the reasons why IBM shouldn't have to produce all the rest of the stuff that SCO wants - particularly the IBM Configuration Management and Version Control System (CMVC) and Revision Control System (RCS) that SCO thinks is the key to its case - she reserved any final decision so she could go off and have a think about it - and probably confer with her staff and her colleague Judge Dale Kimball, who's hearing IBM's motion for a partial summary judgment - a decision, IBM pointed out, that might make her ruling moot.

    However, she did give IBM and SCO 30 days to exchange so-called privilege logs listing all of the discovery that they're not providing each other because it's allegedly privileged.

    She also told IBM to get affidavits from IBM management, including CEO Sam Palmisano, the CTO of IBM's Unix/Linux interests Irving Wladawsky-Berger and IBM's board of directors, attesting that nothing more exists in their files regarding IBM's Linux activities.

    See, IBM - having produced one single PowerPoint presentation - contends that there are no other e-mails, memos, business plans or presentations about Linux anywhere in the joint, evidently proving that not only can elephants dance, but that they really do have good memories.

    Originally Posted By "NemesisNL" 11/30/04 05:31:53 PM EST

    "I don't think Pamela is the next mother theresa.....lets keep things in perspective we are talking about software here not starving children. I do however think you have to be able to provide some pretty good examples of your own integrity before chalenging other peoples integrity. O'gara is in no position to challenge anyone's integrity due to the total absence of integrity on her part.
    The fact that this site lends itself to distribute O'gara's revenge action is sad and does nothing to repair the harm done by o'gara's last exercise in unresearched reoprting."

    Ooooops. Somebody needs to apologize maybe?