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Lawyers Flock to Mystery Web Site's Coverage of SCO-IBM Suit

 

Morrison and Foerster's Michael Jacobs
Jason Doiy



No one knows for sure who Pamela Jones is: where she's worked, where she lives, what she looks like or why she's so obsessed with a lawsuit by the SCO Group Inc. against IBM Corp.

But that doesn't stop lawyers embroiled in the breach of contract and trade secret violations case from being mesmerized by her Web site, www.Groklaw.net.

Jones, who identifies herself only as a journalist with a paralegal background, is the definitive source for information on the SCO litigation.

"I challenge my colleagues in the bar to find a case that is watched at this level of detail," said Morrison & Foerster partner Michael Jacobs, who is representing Novell Corp. in related litigation.

Jones, who responds to questions from the media only by e-mail, said that when she launched Groklaw she wanted to focus on one case and picked SCO because of its interest to the free software and open source community. She believes SCO's suit is an attack on free software.

"I never expected Groklaw to become well-known or so popular," wrote Jones, who won't reveal where she worked as a paralegal. "I'm a very private, shy person. I'm positive if I'd known in advance that Groklaw would become so popular, I'd never have done it."

MoFo's Jacobs has even used Jones' analysis of one of his reply briefs as a training tool for associates.

"When she parses our briefs, it's extraordinary," Jacobs says.

Jones launched Groklaw in 2003 after Lindon, Utah-based SCO sued IBM for breach of contract and misappropriation of trade secrets, seeking more than $1 billion in damages. SCO claims the computer giant used SCO's proprietary Unix code and donated derivative works to the Linux operating system.

SCO officials have been critical of Jones' Web site, suggesting in media interviews that she may have ties to IBM, an allegation that Jones denies.

But regardless of how SCO feels about Jones, the company's lawyers do respect her attention to detail. "What I admire about [the Web site] is the effort and intensity and constancy," said SCO lawyer Edward Normand, a partner at Boies, Schiller & Flexner.

Normand does say Groklaw's pro-IBM slant can be misleading. "In the past 10 or 12 months of litigation there have been some pretty bad rulings for IBM, but it would be hard to tell from reading Groklaw that they are bad," Normand said. For example, he said, the court denied IBM's motion for summary judgment and ordered the company to produce information in discovery.

As for speculation by SCO supporters that IBM is secretly backing her, Jones calls such talk silly. Jones says IBM is too savvy to do something like that since that would come out in discovery. And besides, she said, her views diverge from IBM. For example, she believes software patents are hindering innovation.

"The whole point of doing Groklaw was to give voice to the one group that was not a party to the litigation but would be impacted directly by the outcome: the authors of the Linux kernel," she wrote in an e-mail. "Only a small part of the kernel is IBM's contribution."

The term "grok" was coined by science fiction writer Robert Heinlein in "Stranger in a Strange Land." Part of a fictional Martian language, the word means to understand something thoroughly. Jones said her goal was to help the free software and open source community understand the legal process better.

Lawyers involved in the litigation have also used her site to find legal documents and track the history of the case.

"I've never seen anything like it myself," said Michelle Miller, one of the vice chairs of the litigation department at Wilmer Cutler Pickering Hale and Dorr who represents DaimlerChrysler and Red Hat in separate SCO suits. She said her firm would find things on the site before the court sent out a notice.

Unraveling SCO's litigation web with IBM requires going back to the 1960s and 1970s when employees at AT&T Bell Laboratories built the Unix computer operating system. AT&T sold its Unix operating business to Novell Inc. in 1993. There is now a dispute over who owns it.

SCO claims its predecessor company bought the business from Novell in 1995, but Novell contends it only sold licensing rights to SCO and retained the copyrights to the Unix system. SCO filed suit against Novell last year for claiming ownership of the system.

Over the years several companies have developed their own commercial versions of the Unix system while others have focused on making improvements to the GNU/Linux free operating system.

In 1983, Richard Stallman resigned from his post at the Massachusetts Institute of Technology and launched the GNU project with the goal of creating a free Unix-compatible operating system. Today the GNU system is usually used with Linux as the kernel. People who contribute software code for this system do so under a general public license that allows anyone to use the code for free. The GPL is issued by Stallman's Free Software Foundation.

SCO contends that in donating modified Unix code to Linux programmers IBM breached the terms of AT&T's licensing agreement, which restricted use of the code.

David Marriott, a partner at Cravath, Swaine & Moore who is representing IBM, said his client did not wish to discuss the case in the media.

In court filings, IBM contends that SCO is claiming rights to Unix and Linux that it does not have in order to extract windfall profits and block competing operating systems.

SCO, formerly Caldera Systems Inc., was previously a Linux distributor. A Caldera holding company acquired the Unix division of the Santa Cruz Operation in 2001 and Caldera changed its name to SCO and went back to selling Unix software products.

It's made a big investment in pursuing IBM for violating its intellectual property. In a filing with the Securities and Exchange Commission, SCO said it expects to spend approximately $7 million in IP litigation during the remainder of the year ending Oct. 31, 2005.

In addition to its suit against IBM, SCO filed separate complaints against two companies that use the Unix operating system, AutoZone Inc. and DaimlerChrysler. SCO claimed the auto parts chain infringed its copyrighted software code, and it alleged DaimlerChrysler had failed to certify proper use of the Unix code. Most of the DaimlerChrysler case was dismissed, and the AutoZone suit has been stayed pending the outcome of the IBM suit.

Red Hat Inc., the largest distributor of Linux, also jumped into the fray. In 2003 it filed a complaint against SCO seeking a declaratory judgment that it was not infringing the company's copyright. That suit has also been stayed pending the outcome of the IBM case.

The complaint, SCO v. IBM, 03-00294, is set for trial in Feb. 26, 2007, before U.S. District Judge Dale Kimball of the District of Utah.

"Technically, it's pretty daunting going through years of source code," Normand said.

While the lawyers continue to slog through discovery, Groklaw's creator has been at the center of a media frenzy in the tech community.

In May, freelance writer Maureen O'Gara penned a withering article for an online newsletter called Linux Business News claiming she had uncovered the identity of "the elusive harridan who supposedly writes the Groklaw blog." She wrote that Jones was a 61-year-old woman living in a garden apartment in Hartsdale, N.Y., and included her address, phone number and religious affiliation.

In response to an outcry from members of the open source community, Sys-Con Media, publisher of the newsletter, deleted the article and announced it would no longer run O'Gara's articles.

Jones declined to comment on the O'Gara piece. She said in a May 9 Groklaw posting that she was considering taking legal action.

Meanwhile, a SCO supporter filed suit against Jones and other Web site operators who oppose SCO's position. In a June 21 complaint, Jeffrey Merkey, a former Novell computer scientist living in Lindon, Utah, claims the plaintiffs have defamed him and tried to undermine SCO's lawsuits with threats of "murder, violence, death, oppression, mob mentality ... and threats to overthrow governmental systems." He also claims the Linux and open source software have allowed U.S. technology to fall into the hands of al-Qaida.

This soap opera is an entertaining twist for the lawyers involved in the SCO litigation.

"This case has aroused passions in the software community, and even the commentators are viewed as partisans," MoFo's Jacobs said. "It's a bit like litigating a case on 'Crossfire.'"

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