Home 
 Support Welcome

Daily Wrap and Flow

Reading the Daily Wrap and Flow is a quick and easy way to follow the ebb and flow of the Microsoft antitrust and SCO trials.  This page will always contain the latest commentary making it easy to bookmark.   This column is updated from time to time with the latest commentary on top.

October 27, 2006 - Friday

1:16 PM PDT - Red Hat promises to keep charging customers double (The Register)

Readers know that I routinely use headlines from other articles to tie in the discussion offered here.  And this would be one example where I would not have picked the particular headline. But, it will do.

The article at TheRegister also links to a blog entry by Dave Dargo at Ingres.  And his blog makes some hay pointing out the comparative support costs between Red Hat and the Oracle data base.  I assume most readers can do the same off the top of their heads.

I guess the word to the wise would bring up the old cliché that people who live in glass houses should not throw stones around the neighborhood.

But the point remains that open source products and the support programs that back them up do have to remain competitive in the long run.  That is not the case when customers are trapped by certain technologies or forced to buy one product as a prerequisite to another that they do need.  So in the long run, both Oracle and Microsoft have a whole lot more to loose than Red Hat.

It is also fair to point out that Novell (SuSE), Mandrivia, Xandros, Red Hat, Ubuntu, Linspire and others all keep each other in check to one extent or another.  It is easy to feel that a particular customer may be dependent upon a particular Linux vendor or distributor. But, realistically speaking they are ready substitutes for each other. And that benefits all Linux customers in a way that Microsoft customers can only dream about. (Meanwhile Microsoft tightens upon restrictions on customers, raises prices and take away key decisions that intelligent customers want to make for themselves. All you have to do is look at the mess coming up for Vista and its security and licensing problems.

Can Red Hat maintain its price/cost structure?  I think that is yet to be seen.  Certainly current Linux distributors already serve as a balance in that regard.  Oracle is no different. And it may be for some customers, taking up a less expensive support agreement might make sense.  But, Red Hat can compete against Oracle.  Offering support agreements for MySQL, Postgres or even Firebird, etc., would be just one way to get those juices flowing.  Red Hat does not need to offer its own data base just to play that game. But, it has even done that.

The truth is that enterprise customers value support agreements and costs based upon what they perceive their own needs to be.  And the cost and quality of those services is something they can value.  In other words, those who run Red Hat software now but are not signing support agreements with Red Hat are not going to be jumping over to Larry and his boys anytime soon. And those who get their support from Red Hat are not likely to be so cost sensitive that they drop their pants.

In total this is a good sign for the Linux industry.  Maybe their are some adjustments to make.  But Oracle may have to make adjustments that make what Red Hat might do look like peanuts.

But as for the Linux marketplace, more support options open up the market even more.  And Oracle adding support for its preferred platform has to be viewed as positive.  It is not the amount of additional revenue Oracle can earn by doing so.  Rather it is the support options made available to those customers who view that as a positive.  So whether you partner with Red Hat, sell Red Hat support agreements or act as Oracle is doing, it is becoming a sign of a lack of intelligence when anyone claims Linux is not supported or has support problems, etc.

To be honest, I think it is a real positive sign when a data base company like Oracle takes on the support of an operating system. They can support an Oracle data base and operating system much better with Linux than they can possible hope with either UNIX or Microsoft platforms.  Actually, they could do likewise with UNIX if they wanted to do business with SCO, cough, cough.  But, they have not.  Up until now Oracle has not thought that was necessary.

So now perhaps things have changed.  Oracle thinks that offering a verion of Linux/RedHat is important.  Maybe it is just because of the quality?  Maybe it is just because of the costs involved in doing so.  But they could have just as easily worked out a partnership deal with Red Hat, Novell or even Ubuntu.  They did not.  They choose the direct support route.  And in the long run, regardless of how successful that might be for Oracle, it does offer a value proposition to customers.  And that is what is significant in the announcement.


8:46 AM PDT - Oracle has yet to prove Linux cred (Cnet)

Certainly that is true.

And I think it will be some time before Red Hat customers view Oracle as a suitable second source for Linux support. But, that should not take away from the real significance of this announcement from Oracle.

A better headline might read "Linux is here to stay and Oracle is going to make sure of that".

Certainly every reader of this blog understands that taking the Red Hat distribution, stripping out the trademarks and redistributing the product is a rather simple way of entering the Linux business.  And that can be done with most if not all of the Linux distributions.  There is nothing new in that process.

What is new is Oracle's decision to support Linux in this way and in particular Red Hat Linux (trademarks stripped, that is).  A number of other companies in the industry could do likewise I suppose. And a few have.  Perhaps Oracle is the first major company to do so.

On balance this decision has to add a considerable amount of credibility to Linux.  And even Oracle mentioned the SCO litigation and has responded with its own version of indemnification. Of course, by now the public has a pretty good idea of just how far SCO is likely to get with its litigation in that regard.  (If any reader here has not found the Groklaw site yet, perhaps they can click this.)

Oracle is doing what the GPL permits or even encourages.  And while Microsoft and other proprietary companies may act to exclude consumers and others in the industry from any meaningful participation, the GPL and any software released thereunder has to assume an active effort by many to be included rather than excluded.

This decision by Oracle has to be seen as a sign of maturation on the part of Linux.   Of course, Oracle has been a strong supporter of Linux almost from the start. But, this decision is certainly a significant step. And it assures the industry that Oracle will run just fine or even better on Linux that other platforms.  Oracle has not offered to support AIX, Solaris or HP-UX much less any from Microsoft.  It is restricted from doing so.  Not so with Linux.

So while Microsoft acts to increase restrictions upon customers and indeed their so-called partners, Linux remains available and subject to adoption and support.  And in the long run that is going to make a big difference.  It is going to make a big difference in the quality of the software and the value proposition that the software offers consumers.



7:01 AM PDT - The, case, of, the, million, dollar, comma (TheRegister)

This case up in Canada may not be of much interest to most readers of this blog. But it does point out a few aspects of interpreting contract language. And of course, in both the Novell and IBM cases brought by SCO contract language is important.  So, if interested, you might want to read the linked article to get some idea of the difficulty that contract interpretation can provide. Vague language is always a problem.

What is different between the Canadian case and at least the IBM case is the time that has lapsed during which the contract has been executed. And that is very important.

Yes, you do want to ascertain what the parties meant when the agreement was reached. But, in contracts that have been carried out over the years, the actual conduct of the parties is more important than the "possible" interpretations the wording itself can be put to.  And I have to point out that the SCO lawyers know this just as well as any lawyers. So when when they argue that the wording of the IBM/Sequent licenses could mean this or could mean that, they are being dishonest to say to the least.  It would be understandable for a lay person to read a contract and wonder just how it should be interpreted. By lawyers know that any judge is going to look not only at the wording of the contract but even more importantly how the parties have treated the contract over time.

It is for this reason that IBM in their memorandum make mention of the argument that even if the license/contract were subject to interpretation as SCO lawyers seem to suggest, the conduct of the parties (AT&T, Novell, USL, Santa Crus Operation, Caldera and finally SCO) is determinative.  And it is not just in interpreting the words of the contract.

When you read the motion for summary judgment by IBM against SCO, you see two very important legal issues. After the wording of the contract is discussed, IBM brings up estoppel and finally waiver.  In the linked article above, you do not see mention of either concept although I assume the canadian courts also honor those precepts.  You do not see them mentioned in all likelihood because there are not any facts that would bring them to focus.  In the IBM case, there clearly are a number of facts that do bring them into play.  And without question, SCO lawyers were fully aware of all of them before they even quoted the legal fees to SCO.  Lawyers look for those things early on because they are determinative. And more precisely you often advise clients not to pursue certain legal remedies if and when it is clear that you will lose in the end.  The exception is present when you think you are just being a nuisance anyway and no judge will ever be asked to draw a conclusion.  And interestingly enough, the waiver issue was even mentioned as one more reason why the Novell case should go first before the IBM case. If Novell's waiver of SCO action is pursuant to a power held by Novell, it pretty much lets IBM off the hook completely.  At least as far as contract issues go. And even SCO lawyers have claimed that is about all they can hope for.

So in the case subject to the above link equitable concepts such as estoppel and waiver do not seek to play a role.  In the IBM case, they clearly do. And it bears mentioning again that any defense that IBM might have had against AT&T, USL, Novell, Santa Cruz, Caldera or SCO can be applied against SCO now.  This is all old hat stuff.  If you are SCO lawyers you can ignore it, you can fail to advise you client as to its importance, etc., but you are a fool when you do.

Do not get me wrong.  Plenty of lawyers think that nuisance law suits are just fine.  And they can generate substantial fees.  No question about that. But when you are not honest with your own client, there is a problem. And we might not ever find out what SCO management was told about their case.  We have found out that certain representations were made to the public and even to BayStar and those representations were false.  And as judges and juries learn to assess the credibility of witnesses, when you know some things were falsely represented it is easy to conclude other misrepresentations were made as well.

October 24, 2006 - Tuesday

7:13 AM PDT - Microsoft agrees to Arkansas settlement [on antitrust charges] (InfoWorld)

Ok, so it is only $37.8 million.  No much certainly. But, Microsoft is true to form in paying money just to be able to continue to lie about its illegal business practices.

Enough said.

October 19, 2006 - Thursday

7:51 AM PDT - Novell's Opposition to SCO's Motion for Expedited Stay or Continuance, as text (Groklaw)

Ah the pleasures of watching SCO lawyers squirm.  They wanted and made war.  And now they have it.

The short answer is that I doubt the court will stay the motion for a constructive trust.  The court may accept Novell's suggestion of a partial stay on those other matters.  After all Novell did suggest them originally and now appears to be willing to accept them.

But, you have to understand (and this is not hard) that a motion for a constructive trust and/or partial summary judgment does not necessarily decide the final issue of whether or not SCO owes Novell for those "licenses" with SUN and Microsoft.  A constructive trust is one form of what are called a pre judgment attachments.  In other words, the court can act now to make sure that if Novell is successful in the end, they can be assured of being paid the moneys owed. 

The very fact that SCO is burning through cash puts increased emphasis upon the need for such a remedy.  If SCO had plenty of money, there would be little need for the court to find that a constructive trust was warranted simply because SCO can show its ability to pay when the time comes.  But, if SCO is running out of bucks, then a constructive trust is called for.  And the judge knows this without anyone having to mention it.  It is almost a catch-22 type of situation.  If SCO had plenty of cash, the need for a constructive trust would be minimal. And if SCO is about to run out, its need is great.

It may very will be that funding the trust will cause SCO into bankruptcy (either voluntarily or by movement from a creditor or two or three), but that is not the court's problem.  SCO has been very weak in arguing against hearing a motion as soon as possible on the constructive trust.  Their argument boils down to the claim that SCO lawyers are so busy with litigation that it is a personal convenience item.  But, of course, the same judge is sitting on both the IBM and Novell cases, so he too is "busy as can be".  And I would not be surprised to hear the judge tell SCO lawyers that it appears they will both be quite busy in their upcoming calendars.  But, the judge knows that time is of the essence.  The old cliché applies here, "justice delayed, is justice denied".  Besides it is very easy for the court to observe that SCO should have set aside those revenues in the off chance that they might be owed to Novell.  Do you think?  It is not the judge's problem that they failed to do so or could not do so.

As for the delay or not delay, it is ironic I suppose but courts know that lawyers for one side or the other often get caught in arguing one way and then the other as the case develops.  Of course the judge takes those positions as hints that the delaying party does not feel too comfortable about their case.  Or, they want to put it off for some other reason.  But, I believe that delaying a motion for summary judgment/constructive trust can cause real additional harm to the moving party (Novell).  And the partial remedy of a construct trust is intended to be used to avoid that outcome.  It is not easy to get a constructive trust.  The court will have to find that Novell is likely to succeed on its merits at trial.  And the court will have to find that if the trust is not issued now, Novell is likely to be left unable to get a satisfactory resolution.  Seeing SCO about to bang its head against the columns at the bankruptcy court just points out the urgency of the motion itself.  (Squeaky wheel getting the grease is the analogy.)

Novell may not see their $25 million or so unless the court acts now.  And the judge knows that.  But, guess what my friends?  Novell is not going to see that $25 million either way.  SCO does not have it.  The judge kind of knows that too.  But, this is not his problem.   His problem is granting appropriate motions when they are due.  Chips can fall later that day as they may. And the judge has to laugh when he reads the best excuse SCO can come up with is that their lawyers are so busy with the IBM case.  So is the judge.  Same case.  Same judge. Just as busy if not more so.  Do you think the judge has seen that pile of motions being filed?  And all of those exhibits?  No vacation time this fall.

October 15, 2006 - Sunday

6:39 AM PDT - IBM's Greatest Hits: The Summary Judgment Exhibits - Final List (Groklaw)

What can you say?

This is the list of exhibits from IBM in response to the law suit filed by SCO.  At least as far as the motions for summary judgment are concerned.

But the list explains a lot.  For one, you can see why legal litigation is so expensive.  It is time consuming and takes an enormous amount of effort by a whole lot of people (not to mention PJ and the lot of helpers at Groklaw).

This list also illustrates the only real value that the SCO had for SCO.  And that is its nuisance value.  SCO had assumed (falsely) that IBM would just pay up rather than litigate.  That is what nuisance law suits count upon.  But, IBM, to their credit saw this law suit as a whole lot more than just protecting Linux.

I actually want to take the time now to thank Microsoft for putting up all that cash (and deceiving others into putting their money up as well).  I think in the end Linux will benefit greatly from this litigation.  It is fair to suggest that the motions for summary judgment on the contract issues really just protect IBM and their interests.  But, the motions based upon the Tenth Counterclaim (copyright) really do help Linux in the long run.  That motion (assuming it is granted by the court) will help clear the air about whether or not Linux has any inherent legal problems.

And if that is the case it will be interesting because SCO is likely to lose the motion for summary judgment on the basis that they do not hold the necessary copyrights to even challenge the issue.  Simply put you can not enforce rights belonging to someone else. But that is what SCO has tried to do.  SCO has tried and failed miserably.  Certainly that is true is you measure what evidence SCO has produced compared to what they claimed publicly to have waiting in the wings.  Of course, SCO and their lawyers were just lying about what they had and making allegations they knew they did not have the evidence to prove.  So what is new?

Nuisance law suits are just that.  A nuisance.  An expensive one at that. IBM is unlikely to recover even their litigation costs for this law suit much less any damages they may be owed. Any money that SCO may have will be short in satisfying SCO obligations to Novell.  And Novell with their motion for a constructive trust is going to be sitting in the front row.

So what will happen to the SCO corporation?  Most likely it will disappear.  Liquidation is likely.  Novell might actually be interested in taking back the UNIX business and may even benefit from what is left of the SCO distribution channels and support.  But, Novell would not want the corporate debts or liabilities (such as damages owing to IBM as a result of the litigation).  So it is less likely that anyone will buy all of the outstanding SCO stock.  At today's prices about $40 million or so could have it.  But, who would want it?  And once the Novell and IBM cases go as expected, no one will be interested in the litigation part of SCO at any price (or even kickback).   And that would include Microsoft.  They are already trying to backtrack and renege on previous agreements.  Oral or not, Microsoft promised to backup BayStar.  (Microsoft may have already acted to make BayStar whole. That too would eliminate the need for a written agreement.)

So where do we sit today?

Some major decisions need to be made by the court.  Pending motions now before the court can all but wrap up the litigation.  And I fully expect that to be the case.

I expect Novell will be granted its constructive trust for the $25 million or so that is likely to be owed by SCO to Novell.  And I expect IBM to be granted most if not all of its motions for summary judgment.  The motions for summary judgment on the contract issues look very favorable for IBM.  SCO still has to respond. And their response is not yet available for review. However under the circumstances SCO is going to have a very difficult time getting any contract issues before a jury.  And the same is likely to be the case with IBM's Tenth Counterclaim (copyright issues as they relate to Linux).

What about SCO?

As a company is is finished.  The UNIX business is fine although disadvantaged because of what SCO has done.  Just think who different it might be for SCO/Caldera if they had put $30 million or so into R&D instead of paying deceitful lawyers?  Of course Microsoft would never have arrange the money to finance Linux/UNIX R&D.  I find it likely that the UNIX business will go back to Novell and it will "process" it as Caldera originally had planned.  UNIX as a technology will be open sourced.  And in time as a separate technology from Linux, it will go away.  Certainly the legal issues will disappear.

But at the moment we have these key motions for summary judgment from IBM.  The motion regarding the contract issues is key for IBM.  And the motion based upon copyright issues is key for Linux.  I fully expect both to be granted by the court.  I have thought so from day one.  But, now that the evidence has had a chance to surface or not surface as the case may be, it is much easier to see how the resolutions will be reached.  I think that even the judge can see the light at the end of the tunnel.  Of course that tunnel is long and just choked with exhibits, motions and arguments coming from all sides.  But some cases are not so hard even if highly complex.

Keep in mind that the judge is focused upon one primary decision.  Do we need a jury to decide who to believe or decide those material facts?  As members of the public we tend to focus upon who is going to win the case. But the judge is not concerned about that.  The judge is focused upon whether or not a jury is needed to decide material facts.  And it is SCO's burden to point out to the court now any facts that if believed would support SCO's allegations.  Or, if in the alternative, uncontested facts when applied to the appropriate law would decide the issues.

Specifically SCO needs to present evidence that the contract issues favor their position.  If they fail to do that, the motion for summary judgment favoring IBM will be granted.  It is no longer enough to suggest or allege that the contract could be interpreted one way or another.  SCO needs to come up some evidence suggesting their interpretation should be accepted by the court.  Frankly I do not think they can. But, the ball is in their court today.

Specifically SCO needs to present evidence that SCO holds the appropriate copyrights AND that there is sufficient evidence to show those copyrights have been violated.  It would appear that SCO has not and can not do either.  So if the court wanted to minimize its order, it could simply find that SCO does not hold the copyrights and avoid issuing any order in regard to possible violations of those copyrights.  If SCO is not the rightful holder, they can not litigate those rights.  But, the court may decide to reach the decision that SCO has tried to prove copyright violations, failed and therefore should forever be estopped from doing so again.  So the court may issue a decision that SCO failed to prove copyright violations as well.  That decision would help Linux enormously.  Any decision on the copyright issue for IBM is likely to help Red Hat since SCO would be prevented from defending itself against the Red Hat action for declaratory relief as well.  If SCO does not hold the copyrights to assert against IBM, it would also fail to hold them up to Red Hat or even AutoZone.  (Note that the court most likely could not decide that Novell holds those copyrights. At least not in the IBM case.  The same judge is sitting in the Novell case. So he does have the ability to decide the issue. Just not in the IBM case.)



October 11, 2006 - Wednesday

11:47 AM PDT - Microsoft SCO conspiracy theory quashed (again) [?] (The Register)

Despite what Microsoft and apparently The Register might want you to believe the declaration from Goldfarb does not even come close to suggesting that Microsoft is not behind the funding for SCO.  Precisely the opposite is true.  It may not be ballistic evidence but it is in fact a smoking gun.  Are we to believe that both Microsoft and BayStar thought it necessary to discuss Microsoft backing up the $50 million or so but in the end just drop the idea and through the money into the hole?

I do not know what turnip truck you fell off of but that declaration clearly suggests that Microsoft did back up those dollars.  And Mr. Goldfarb was only one of three votes to fund the money.  What did the other two voters know?   And what were they told?  It may be that no written agreement exists.  But that is not proof of a lack of an agreement.

Practically you only need a written agreement when it is likely that the two parties might forget their promises, etc.  Or, that one party or the other might want to take the agreement to court and have it executed.  I doubt either is true or even likely.

Besides this declaration is a statement written by Mr. Goldfarb.  It is not a cross examination.  It is not even a direct examination.  It is simply a carefully worded statement of what Mr. Goldfarb could testify to.  Or, would want to testify to.  And he is certainly not going to blow the lid off of the location of any written agreement even if it does exist.  And if Mr. Goldfarb were to testify and the questions deemed relevant (which they may not be in the IBM case), he could testify whether or not a written ever did exist or just what did they decide to do between them.  That is not spelled out here.  And, in fact, it is very likely they did not agree to do any specific thing.  Just that Microsoft would cover BayStar losses should they occur in one way or another.  And certainly Mr. Goldfarb would not disclose too many details here if he wanted to allow Microsoft to continue to lie about what they do and hopefully be in a position to "accept" any recovery from Microsoft.

Mr. Goldfarb does say that Microsoft would not agree to put anything in writing. But that is not at all the same as saying they would not back up the money.  The contrary is suggested by Mr. Goldfarb.

Forget the conspiracy word.  It is not about a conspiracy.  It would be legal for Microsoft to fund those monies directly if they wanted to.  Their only concern was offering the help without being held accountable in public for doing so.  There are no civil or criminal concerns here.  It is all PR.  And if Mr. Emerson was a real person, there is nothing here to suggest that several other Microsoft employees were not also in on the discussion.  Or, at least the agreement to backup that investment.

Maybe BayStar decided that no such backup was necessary.  But, I doubt it.  BayStar is a hedge fund.  And that means they make it there business to limit uncovered risks.  It is as simple as that.

Proving a negative is always difficult.  Suggesting that no written agreement exists is no evidence at all that no such agreement was entered into between BayStar and Microsoft.  On the contrary, this declaration clearly suggests that such an agreement was reached.

In fact, I find nothing in this declaration that suggests Microsoft did not guarantee those monies.  So unless you want to suggest Mr. Goldfarb is a fool of sorts, this declaration simply does not clear Microsoft of anything.  Microsoft made the connections and secured the financing.  Whether they used their good name, promises or deceit is beside the point.

October 10, 2006 - Tuesday

7:13 AM PDT - The Goldfarb Declaration - Updated: MS Statement (Groklaw)

I guess the promise by Microsoft to cover any BayStar losses was not reduced to writing. But it would be a lie to suggest it does not exist.

From the Goldfarb declaration:
7. I did some research on SCO, and had conversations with Mr. Emerson about it as well. In the course of my research about SCO, I became concerned that SCO might be merely a litigation company. As a result, Mr. Emerson and I discussed a variety of investment structures wherein Microsoft would "backstop," or guarantee in some way, BayStar's investment. In addition, I had discussions with Kenneth Lustig, Microsoft's managing director of intellectual property and Tivanka Ellawala, from Microsoft's corporate development department regarding the SCO deal. As part of these discussions, Microsoft assured me that it would in some way guarantee BayStar's investment in SCO. However, Microsoft would not agree to put anything in writing on this point.

Whether the agreement was in writing or not is beside the point.  Microsoft not only encouraged BayStar to fund SCO's legal bills but it also discussed and most likely agreed that it (Microsoft) would backup anything BayStar did by way of financing.

Agreements such as this do not need to be in writing anyway because they are agreements between friends if you will.  There are many business agreements and understandings that do not get reduced to writing.  And here Mr. Goldfarb clearly says that Microsoft just refused to put the agreement in writing.  He does not say an agreement was not reached.

There are many ways in which Microsoft can make good on its promise to BayStar.  After all, Microsoft would not want to burn a friend, right?  You know, use deceit or something.

It is also interesting that Mr. Goldfarb suggests that SCO lawyers just thought that IBM would quickly settle.  I would suggest that is quite a miscalculation.  However, it does explain why we are here today with little or no evidence being presented by SCO.  It would appear they thought those "badges" were not necessary.  It also suggests quite strongly that these law suits were viewed by SCO as nuisance law suits from the beginning.  No surprise there.

And I suppose the judge will not be surprised either as he reads through this crap.



October 5, 2006 - Thursday

11:24 AM PDT - Should not the Novell case go first?

Of course SCO has always been trying to get the various law suits resolved in the wrong order.  But, many issues in the IBM case do require resolution in the Novell matter first.  Yet we find SCO lawyers suggesting here that the Novell matters should be delayed until after the IBM summary judgment motion has been decided. That is asking the court to go backwards and not only delay for a while.  And do not think for a moment this judge does not see that.

SCO did not even make an argument that the Novell case should be delayed because some of the issues to be resolved in the IBM matter might affect the Novell case.  In fact, I doubt any issue raised in the Novell case (claims or counter claims) rest upon a prior determination of the IBM case.  Even as much as the summary judgment. About the only real connection they have is that Novell waived SCO's actions against IBM.  And I suppose that if the court decides that waiver is the only reason IBM gets off the hook (as opposed to the contract not saying what SCO suggests or the estoppel not being appropriate), then I suppose SCO might have a claim against Novell for wrongfully waiving SCO's rights against IBM.  But, as I recall, SCO has not even charged Novell with a wrongful wavier of possible rights against IBM.

So what is really going on here?

Of course, SCO does not want to go into bankruptcy.  That would almost certainly mean that SCO management would be out and the current SCO lawyers would be taking directions from the Trustee in Bankruptcy.  And that trustee is likely to call the dogs off so to speak.

But the thinking goes a little deeper.

In major litigation neither side really gets serious about settling a case until after any summary judgment motions have been heard and decided.  For one, they almost always narrow down the issues for trial.  And they do make a number of issues simply go away.  So it is a good guess whether SCO will even have a case once all of the summary judgment motions have been decided.  And we can put aside for the moment any speculation or guessing as to how true that might be in the IBM case.

But, SCO lawyers know that IBM is highly unlikely to even think about settling the case until they are post any summary judgment motions.  From a practical standpoint, that is when most cases are settled out.  Both sides know what is left for trial.  And perhaps for the first time they can accurately assess their chances, etc.  So that is when things become more serious. And, of course, SCO can hold out some hope that a possible settlement with IBM might provide them with some monies to fund that constructive trust that Novell is asking for.  And, yes, I assume that SCO lawyers assume that Novell will get that at a minimum.  Of course, with some fresh money from IBM perhaps SCO could avoid bankruptcy.  (I do not see Microsoft or even BayStar jumping in with more fresh money to help out SCO.  They might. But, I rather doubt it.)

The problem for SCO is that their entire argument for delaying the Novell motions is simply a matter of convenience.  At least those are the only arguments they were able to muster.  SCO is so busy, etc.  Well, SCO brought both the action against IBM and Novell originally.  So the court is not likely to value issues of convenience. 

How ironic it is that Novell was at one time moving the court to have the Novell v. SCO case dismissed.  And, of course, SCO objected to any such thing.  I guess you do have to be careful about what you ask for.  And, of course, the judge knows all of this.  SCO picks a legal fight with two other companies. Makes all kinds of public claims and accusations but fails to show up in court with any proof (i.e. SCO failed presenting evidence for both the Novell and IBM cases).  And I rather doubt the court is going to go out of its way to favor SCO under these circumstances.  Certainly the lay of events puts extra stress upon not only SCO but the court as well.  So the court could simply suggest to SCO that they will both have to gear up a bit to handle the events as they may be.

And the court is well aware that any delay on its part in addressing the issue of partial summary judgment or constructive trust may directly jeopardize Novell's rights and/or ability to collect the funds it may be owed.  So there is little doubt that Novell will respond to this latest suggestion by SCO with some additional argument about the importance to Novell to have these matters resolved while SCO still has at least some funds available.

And by the way, pending law suits can be sold too.  For what ever they are worth.  But, of course, SCO would have to find a buyer that actually thinks the case against IBM (or perhaps Novell) is actually worth something.  After all, the lawyers have been paid already, right? And they are supposed to be smart ones.

What a silly suggestion?  SCO selling out its legal claims against IBM and/or Novell.  Well it is silly.  But if it is supposed to have such great value, it is a salable asset.  Of course you have to find a buyer that agrees.  Maybe BayStar, Microsoft or even SUN are interested?  Why am I still laughing?

I suppose it is because SCO put themselves in this mess.  No one was out to hurt them in any way.  And they supposedly got into this situation under the advise of legal counsel.  I guess this is just one example where huge legal fees get into the way of appropriate legal advice.  I for one would love to know what SCO lawyers originally told SCO about all of this.  They had access to all of the agreements. (The public is only now getting a taste of those documents.)   And supposedly they knew contract law and copyright law, etc.  And they knew how the legal system worked, etc.  All those things lawyers are expected to know like the back of their hand.

But if that is the case, why is SCO in such a mess?

Of course anyone who is hoping that Linux will come out of this with a proven clean bill of health would hope that the Red Hat case goes first.  But, instead of that the Red Hat case is on hold pending the IBM matter.  And if SCO wins against IBM on contract issues just about everyone else is off the hook because SCO will have been made whole by IBM.  But, as you must know by know, IBM in its defense is saying in part that Novell waived any right that SCO might have in these cases (at least as far as contract issues go).  So I guess it all falls back on Novell.  And what does SCO now want?  Put off the Novell issues until after the IBM summary judgment.  Well, consistently SCO has always sought to put the ducks in the wrong order. And I am sure the judge sees the humor in that too.  But, the judge is not laughing.  Any judge wants to see issues resolved as quickly and as efficiently as possible.  And that includes getting them into the correct order.  And to that end SCO has been fighting the courts since the beginning.  And do not forget poor ole AutoZone who does not even want to be in this fight at all. And they should not be.  IBM, Novell and Red Hat all have a dog trained to do whatever is necessary.

Do you sense a reason for the court not to honor SCO's recent motion?  I sure do.  And do not think that all of these issues do not play a role.  They do.  But, the decision itself has to be based upon some legal reasoning.  Of course, the reasoning can be as simple as SCO failing to present sufficient cause to delay the pending motions.  Do not be surprised if the court simply tells SCO that they will both have to endure the load.  In fact, both the court and SCO are pressed with the same issues.

Sometimes you do reap what you sow.



7:07 AM PDT - SCO Begs Novell Court to Stay Novell's PSJ/PI Motion Until IBM is Decided (Groklaw)

The last gasp for air I presume.

What is interesting about this motion is the referenced to the fact that SCO and Novell have been in negotiations over this matter and no agreement could be reached.  There is no reason to doubt that claim.  No doubt Novell and SCO have been discussing the payment for those license fees for some time.  SCO just has refused.  And if Novell had suggested some kind of buy out which I would expect, I am sure those terms were not very attractive to SCO.  It is a little bit like a man hanging over the edge of a building not immediately falling because of some grip.  But the grip is slipping.  And the only person who can help is a creditor (or a cop whose brother was shot in the head by that person).  Yes, I am mixing the metaphors a bit. But we have all seen those movies.  The guy hanging over the side just does not have anything to negotiate with.  So here we see SCO hanging but slipping.

And it is not that if the motion is granted to Novell, SCO will not see the end to the IBM litigation.  Litigation does not go away just because you file for bankruptcy.  It remains. What goes away is the SCO management and most likely the ability to make any significant legal decisions as well.  A trustee in bankruptcy will take a fresh look at all pending litigation. And will act in the best interest of the creditors.  Valid cases can even be sold off for cash.  Invalid ones can be settled.

I am sure each reader has their own idea of what an independent analysis of the pending litigation might suggest.  But what is clear is that SCO lawyers fear they will be out.  The current SCO management and SCO lawyers will not be able to prosecute their nuisance law suit.  To make a point, if SCO's legal position were sound and legitimate, there would be little risk if any in just filing for bankruptcy on their own.  It would protect them from Novell for the moment even if the motion for the injunction would issue. But, alas, SCO here is telling the judge that they fear the pending bankruptcy.  And no doubt, the judge knows why.  And it is not his decision that is the problem.

SCO is coming up with all kinds of reasons why they should not have to pay the piper today.  But, the reason constructive trusts, etc. exist, is to give some measure of protection for a pending or present creditor. Those reasons do not go away because Novell was slow to ask for the remedy.  On the contrary, that kind of remedy becomes ripe over time.

Judge Kimball is sitting before SCO on both the Novell and IBM cases.  And he as well as anyone can see the writing on the wall.  And the writing says that SCO does not have any evidence to support their claims against either Novell or IBM.  And SCO does not have the cash to avoid bankruptcy.  But, you see, bankruptcy protects SCO.  At least it protects SCO creditors.  And one of those creditors is Novell.  Novell is a major creditor, I would say.  What was it?  $25 million or so. And what is SCO's market cap today?  $42 million or so?

I am sure those discussions between Novell and SCO were interesting indeed.  Novell says, "you can leave now but place your jacket, shirt, belt and pants on the table on your way out..and those expensive shoes too". I am sure SCO lawyers were permitted to leave with their underwear and socks.

What will Judge Kimball do?  Of course that is up to him.  But he already knows a lot about this litigation.  And he understands all of above and more.  He has even seen the evidence show up or not show up.  And interestingly enough, not staying the PI motion but issuing it as moved by Novell might mean a whole lot of other work may go away.  And he knows it is not his responsibility to avoid putting SCO into bankruptcy.  That is their (SCO's) responsibility.  All Judge Kimball really needs to decide now is whether that partial summary judgment should issue or the constructive trust should be applied.  He can let the other chips fall as they may.   SCO may find some money somewhere.  Maybe BayStar wants to help out?  They claimed to want to see the end of the litigation.  Let them cough it up.

Keep in mind that a constructive trust does not mean that Novell gets the money.  It only means that the cash is set aside assuring Novell that if it is due those funds, it will be able to get them.  And it is SCO's problem if it can not provide that protection for Novell.  But, then that is what bankruptcy is for too.  To protect the creditors.

For SCO bankruptcy is only "bad" if they and their lawyers know their legal cases are full of crap.  After all, did not SCO claim some $5 billion in damages from IBM.  No doubt SCO and IBM have been discussing settlement too, right?  Maybe IBM is willing to settle for a billion or so?  Then SCO can pay off Novell and settle the rest out, right?  Sometimes you just have to laugh.  Most likely the SCO/IBM discussions went the same way as with Novell but IBM wanted to even keep the SCO socks.

We will see how this jells out.



October 4, 2006 - Wednesday

7:41 AM PDT - Security Software Makers Upset Over Windows Vista (NYTimes)

The public comments continue from Symantec and McAfee. They do not like being locked out of the security business.

But this is precisely what is going on.  The impact on the market will follow Microsoft's plan with the browser and media player markets.

Will it result in a less secured OS?  Very likely.  And Microsoft could care less.  Microsoft's objective is clearly to take over the revenue stream that security products provide.

This is what happens when you follow the elephant through the jungle.  You have to watch out for the manure. And the wild beast is likely to turn on you.  This is a lessor for all so-called Microsoft partners.  And for those who suggest that following the proprietary lead of Microsoft is somehow okay.

Microsoft sells to more fools every day.

And as has been discussed earlier antitrust law is unlikely to provide any protection for these security companies.

October 3, 2006 - Tuesday

12:10 PM PDT - IBM's Massive Memo in Support of SJ On SCO's Contract Claims - Updated (Groklaw)

Yes, it may take some time to read the long memo from IBM. But, if you acknowledge that SCO has claimed that its claims are based primarily on contract law, it really does pay to read this memo.  Simply put, SCO's position is laughable.

From IBM's Memo for Summary Judgment, page 73.
278. SCO's claim depends on the proposition that SCO's alleged predecessor (AT&T) acquired the right to control modifications and derivatives of System V pursuant to its System V licensing agreements. the argument appears to be that SCO has the right to control not only System V, but also the code, methods and concepts of other flavors of UNIX, like AIX and Dynix. In fact, SCO seems to claim that it has the right to control any code, methods, and concepts ever associated with System V.

Then on page 92 this argument is made:
Moreover, the Agreements were executed on behalf of AT&T by Messrs. Wilson and Frasure. Mr. McDonough executed the Agreements for IBM, and Mr. Rogers executed them for Sequent. All agree that they were not intended to restrict IBM's use of its original works -- whether or not they were or might become part of a modification or derivative work of UNIX System V.   In addition, Mr. DeFazio, the overall head of UNIX licensing, and the other individuals who actually and actively negotiated the Agreements, Messrs, Vuksanovich and Kistenberg, likewise agree that the Agreements were not intended to restrict IBM's use of its original works, even if they were or might become part of a modification or derivative work of UNIX System V.

Of course the real problem that SCO faces is that they do not have any witnesses to even suggest the license agreement means what they allege.  And that is a real choker.  I can not imagine any lawyer thinking that their client could even bother to spend the money to litigate this issue.  Of course we have not read SCO's response yet. But we are at a point in the litigation where allegations are of no value.  It does not do SCO any good to suggest the contract should be read this way or that unless they have some evidence to prove it with.  And since SCO was not even one of the original parties, that is unlikely.  On the contrary it would seem that AT&T, IBM and Sequent all agree what the license terms mean. And they do not agree with SCO.

Now if you are interested in the other reasons why the court should grant IBM their motion for Summary Judgment, you should read the sections regarding promissory estoppel and waiver.

Promissory estoppel and waiver are extremely important and powerful concepts.  They both are based in equity which means they are applied by courts of law to avoid unrealistic and unfair conclusions.  And that is why you see those arguments made with the proviso that even if SCO's interpretation were correct (and it is not), SCO still loses.

Frankly I can not imagine any lawyer telling a client to litigate these contract issues.  They simply are not anywhere near being borderline or as some may say "good subjects of litigation". Rather the opposite is true.  Any lawyer who advises a client to litigate in these circumstances should be sued for malpractice.  It is that bad and obvious. The facts would not even make a decent law school exam.  It would be too simple and easy.  A lousy question in other words.

Rather this is very likely to be one of those cases where the court decides based upon the first argument.  And that is that SCO's interpretation is simply false. And it would appear that all of the possible parole evidence that could be offered by witnesses seems to go against SCO's claim.  SCO is going to need to come up with some evidence that its interpretation is correct. But I have no idea where. SCO's response will be interesting reading for sure. But you have to focus upon the evidence they could show the jury not just repeating allegations or suggestions on how the contract could be interpreted.  SCO needs to actually have a warm body willing to testify as to what the terms were supposed to mean.

And then you have the arguments for estoppel which is more than sufficient to win for IBM.  And then you have waiver which is also clearly sufficient to win for IBM.  And most interestingly the argument that SCO itself have waived any of their claims by distributing and supporting their own version of Linux.  There is enough here to put the judge on the floor laughing.  Actually the judge will not be laughing.  Chances are he will listen politely and they say "next case" not even bothering to announce his decision.  I mean this is absurd.  SCO lawyers should be sued for malpractice. They fished $30 million or so out of SCO on a false representation that SCO has a contracts case.  (Not to mention copyright and the other crap.)

What is really interesting is the value (some $5 billion or so) placed on the litigation.  That value is not based upon any harm done to SCO.  With AIX, etc., more harm has been done to IBM by promoting Linux than any harm done to SCO.  Rather the value shows the absurdity of SCO's claims.  It is the harm that would be done to everyone else if SCO's interpretation would be adopted by the courts.  And there is no chance in hell that is going to occur.  Read the arguments for estoppel.  They are all based upon the premise that significant harm will be done to IBM if the claim is honored by the court.  But, the harm is in taking away property and rights from IBM.  SCO never had them.  SCO never even paid for them.  The price SCO paid was minimal indeed to the claims being made here by SCO.

And those does make a difference.  If SCO had paid billions to get that UNIX business, then perhaps SCO could argue substantial loss.  But it did not.  SCO could barely pay what it did. Some $40 million or so.  And even that included some SCO stock instead of cash.  The price was what it was because of the limited property SCO acquired.  That is fair enough.  But, what it did acquire was restricted and limited not only by Novell but also by the terms of original license agreements and the history of their execution.  IBM's memo even points out that the license was a "form agreement" written by AT&T.  And, yes, such agreements are routinely decided to disfavor the party who provided the form, AT&T (or SCO).

This law suit from day one was intended to be a nuisance law suit.  And a nuisance law suit is simply one that lacks legal merit but is brought solely for the purpose of causing more pain, frustration and harm to the defendant if they litigate it rather than pay off the plaintiff.  But, any lawyer worth two bits should have readily concluded that IBM would never settle this suit. The claims are simply too ridiculous.  Too absurd.

It is a contracts case all right.  But saying so does not suggest that SCO has a viable contracts claim.  Of course, SCO has yet to file their response. We will see. But it still appears SCO lawyers found a fool for a client.  Either that or they just lied to them. But I can not imagine any lawyer advising SCO to sue IBM for contract violations.  That would be stupid. And it is not because it is IBM.  It would have been stupid to sue any of the UNIX System V licensees.  SCO has a better law suit against Caldera. Choke.

So let's see what evidence SCO has that their interpretation of the contract was intended by the original parties and indeed enforced by AT&T, USL, Novell and Santa Cruz over time. That is what it would take.  Some real evidence that would require a jury to be called in order to decide the material facts.  You know, to decide who is telling the truth and who is not.  And lawyers do not count here.  Witnesses do.  Real live people.

But no jury trial is going to take place unless SCO can point out the evidence it has in support of its position. Otherwise, there is nothing for the jury to look at or listen to.  And that is the determination that the court must reach in order to decide whether a motion for summary judgment is appropriate.


7:38 AM PDT - More Novell Filings too (Groklaw)

Yes, where are those agreements and amendments?

Microsoft and SCO have been spouting off for years now trying to explain how and why Microsoft sends over a pile of cash to SCO.  But, I guess they (Microsoft and SCO) simply do not want to tell the world what the agreement was or is.  As if the actual documents would entail the entire agreement.

But, now comes Novell asking for its money.  SCO seems unable to pay if it wanted to.  And things are likely to change soon.

I guess the public will just have to wait a bit.

7:14 AM PDT - Share the Vista vision, Microsoft tells security rivals (The Register)

Do as we tell you says Microsoft.  And stay out of the security of our OS.  Or, we will let you know if we need your help.

That is the same attitude Microsoft expressed with the browser and media player for that matter. And Microsoft will no doubt use its muscle to knock former partners out of the industry.  And it must be a matter of greed since the result is very likely to be very confusing for consumers. And it is likely to result in a less secure Vista system. But since when did Microsoft do something because it was better for customers?

No one in their right mind would suggest that a true choice would be preferred by all customers. And that includes browsers, media players and security software.  But, choice means the customers money does not go to Microsoft first and then only if the customer wants to do more to bring on alternatives.  That is called bundling. And it is illegal.

Now, you know that I happen to think that Microsoft does owe a duty to secure its OS.  It does not owe a duty to provide any customer with a particular set of key applications.  That should always be left up to the customer.  But, history has shown that Microsoft cuts out the choice of its customers too even when it may very well harm them.

Sounds like a very good reason to switch to the Linux platform.  Better security today.  And chances are very good that this kind of discord is unlikely to result with an open source solution.  Key OEMs must be feeling left out yet again.  If they want to sell Vista they have to promote what is likely to be an inferior solution.  Just like with the browser.


October 2, 2006 - Monday

8:09 AM PDT - Vista hit by EC fears and McAfee ire (The Register)

I guess it is more news.  Good or bad depending upon on your viewpoint.

This article suggests the EU Commission is now concerned with bundling of encryption technology and handwriting recognition.  The article also mentioned the move by McAfee discussed in more detail immediately below this comment.

If the distinction between operating systems and applications is important to consumers, then the bundling of handwriting recognition software brings up a new issue. At least to comes along side that of the concerns expressed by Adobe.  Encryption technology is about half way between being a user application and an OS function.  Assuming the technology is used to secure files on a particular system it is easy to view it as function of the file system. But that does not necessarily answer the question.  Some functionality of systems such as networking can not ever be directly associated with the OS or inter computer communication would be impossible. And that is assumed for networking. So networking technology is always and must always be external to the OS. And that is true regardless of where you put it.  Commingling code does not answer the question or decide the issue.  Rather the question needs to be decided based upon whether it is completely controlled by one computer to the exclusion of all others (such as most security software) or whether it assumes multiple computers are in play and therefore the software can not be attached to only one of them.

Networking software has to be a subsystem actually available as cross platform software or it simply serves to enforce a dominant or monopoly position in the marketplace.  SAMBA gets around that restriction buy only in part. 

Encryption is very similar to that of file compression software.  At first blush one could think it must be (or could be) part of the OS.  But, as soon as you assume dual booting systems might have some merit, that conclusion no longer makes sense.  So this encryption issue brings up back to the Stac issue or file compression issues of years past.  Files by their very nature should not be tied to a particular OS simply because the user/customer may gain significant benefits when it is not.  Files accessible jointly by Microsoft and Linux systems for example can offer a great utility to users.

And there is a comparison between Microsoft's refusal to allow other systems to access Microsoft file formats and the effort now by Microsoft to include encryption and even DRM. Both fail to benefit the consumer unless the technology is readily available independently of Microsoft.  Otherwise Microsoft abuses their position in the market to further restrict competition by limiting access to the user's own data.

Simply put, a user does not need to protect against viruses affecting the Microsoft platform when the Microsoft software is not running.  The same can not be said for encrypted files, networking software and/or user applications.  Those technologies should not be bundling with the OS by the technology itself or by simple marketing (bundling).  Doing so limits the value to consumers. And it does so two ways:  1) restricts the user to running a high priced monopoly system and 2) limits the market for alternative solutions.

So if Microsoft is bundling encryption technology and/or handwriting recognition software (or any user application), the restriction upon the market is in place.  And many superior technologies have been rubbed out by Microsoft's illegal acts in recent history.

The real question is "Where is the US DOJ in all of this?".  No doubt sitting on their butt hoping Microsoft will gain a much stronger monopoly.  They seem to promote the financial interests of Microsoft Corporation every chance they get.  And to the direct harm to the industry and consumers alike.

What can or will the EU Commission do?  We will have to wait and see.  Microsoft wants a free pass to violate antitrust law.



7:27 AM PDT - Rivals charge Microsoft wants to "hamstring" them (Reuters)

It appears McAfee has placed a full page ad in the Financial Times arguing that Microsoft is making it more difficult to protect customers because they (McAfee and others) have been denied access to the core of the operating system.

This issue was also raised by Symantec with the EU.

And while improving the OS to be more secure is certainly something Microsoft is clearly entitled to do (as opposed to bundling user applications), the impact upon the industry is the same.  Competitors are seriously disadvantaged.  And according to this ad makes it much more difficult for McAfee, Symantec and others from helping users secure their own systems.

The article mentions efforts by Microsoft to disadvantage Netscape, Novell and RealNetworks in similar ways.  It all boils down to either bundling products to destroy the market or blocking others from access to key Microsoft technologies.  And while I have downplayed the value of having access to Microsoft technologies, there is no doubt about the impact upon competitors and indeed consumers as well.

The article also mentions the very real danger that will exist if security for systems is defined by a single company such as Microsoft.  Microsoft has not earned that kind of reputation at all.  And even if it did, having such a homogeneous environment is a very real risk.

It is just too bad the authorities and key companies have not waken up to this problem sooner.  The illegal bundling of IE may be a given and beyond correction.  And, now, the effort to preclude tying security to the OS may lose because of a lack of a basis.  There are many very good reasons why applications should not be bundled with the OS. But, the US DOJ was apparently too stupid to understand any of them.  And Microsoft just paid AOL (Netscape), SUN and RealNetworks for the privilege of screwing everyone else.

Now it may be that McAfee and Symantec are hoping to get the access they want and would not mind keeping everyone else out.  But even that is subject to abuse by guess who?

What you have to keep in mind here is that Microsoft is looking for additional sources of revenue. And as Linux on the desktop takes hold, that need will intensify.  Competition by OpenOffice and StarOffice as well as others is likely to put some real pressure upon Microsoft.  And we all know that Microsoft loves to violate any law that will disadvantage a competitor.  And that is true even when it is obvious that consumers themselves will be harmed by the illegal acts.  Microsoft has proven that to be their policy. So it is entirely possible that Microsoft would create a significantly less secure environment if it meant greater revenue for them.  They have already done that.



Sept 30, 2006 - Saturday

7:16 AM PDT - Heads Up! Incoming! Filings! -- Novell Files Motion for Preliminary Injunction - Updated (Groklaw)

[Updated: 11:22 AM]

Here we go off to the bankruptcy court.  It is likely to be only a matter of time now.

Novell has decided to ask SCO for the $25 million or so it collected from SUN and Microsoft.  And it is most likely going to get it with the help of the court.

Taken right from the Novell motion:

Novell, Inc. ("Novell") moves the Court for partial summary judgment as to its Sixth, Seventh, Eighth, and Ninth Claims for Relief for constructive trust, breach of fiduciary duty, conversion, and accounting, respectively. In the alternative, Novell moves for a preliminary injunction ordering an accounting and imposing a constructive trust over all monies wrongfully held by The SCO Group, Inc. ("SCO") pursuant to its 2003 Agreements with Sun Microsystems, Inc. ("Sun") and Microsoft Corporation ("Microsoft"). These monies -- amounting to approximately $25,846,000 plus interest -- consist of royalties, fees, and other amounts that SCO collected from these Agreements and then failed to remit to Novell pursuant to SCO's duties under the Asset Purchase Agreement ("APA") between Novell and The Santa Cruz Operation ("Santa Cruz"), dated September 19, 1995.


Now it is a simple matter of the court deciding which is the correct path to take.  Novell suggests the court may impose a constructive trust upon SCO by way of a partial summary judgment or in the alternative issue an injunction ordering an accounting and imposing a constructive trust.

Either way, if the court decides that Novell is likely to be owed those funds and would prevail at a full trial, the court now has the ability to essentially shut SCO down.  Not really shut SCO down of course, they could continue to operate under a bankruptcy filing. But it would appear SCO would have to do that if they can not come up with the scratch.  A constructive trust would mean that Novell does not actually get the money but it would require SCO to prove to the court that the funds are set aside in a special bank account from which the court can control withdrawals.  If SCO can not fund that account, they have a very serious problem.

There is little doubt in my mind that SCO will have to declare bankruptcy when this court issues its order.

And as we have discussed previously, once SCO goes into bankruptcy a lot of prior assumptions go out the window.

It is my conclusion that Novell pretty much knows it will not see this money. But, it will gain a claim against SCO and that claim alone would appear to be sufficient to force a bankruptcy. And unlike many typical bankruptcies, SCO simply does not have a viable business to use in order to wade out some rough times.  It is pretty clear that SCO has hoping its SCOSource and licensing scheme would provide it the necessary funds to finance its law suits.  It would appear that is going to collapse now.  It was apparent it would collapse for some time. Even years.

So how is this going to affect the litigation against Novell, IBM, AutoZone (remember them?) and even Red Hat?

Well, it depends.

I have already suggested that if SCO goes into bankruptcy, the trustee in bankruptcy is going to begin calling the shots.  And that means that the management of SCO effectively changes. At least as far as the major decisions go.  All ongoing litigation will likely be reviewed by yet another group of lawyers.  And they will not be paid $30 million or so to misrepresent SCO's legal options.  And they will not be listening to the BayStar's or Microsoft either.  They will only be interested in satisfying the creditors and the shareholders of SCO.  But, primarily the creditors.  And you have to keep in mind that Novell is not the only creditor that SCO has.  Other creditors are likely to develop an itch.  Not to mention the employees.

It is likely we will witness the implosion of a company caused by stupidity, greed, misrepresentation and deceit.  And, no, I doubt we have learn the last of law suits being filed over this. A lot of people have been told a lot of things by SCO management and SCO lawyers.  And once the truth is out and they seem to be coming up short, there is no telling who all might have the phone number for a lawyer of their own. When it comes to deceit and misrepresentation (and there has been a hell of a lot of that in this litigation), that is the way it should be. That is, that those who have been misled over the years may have some redress of their own.

At the bottom of all of this, guess who I think is to blame?   Lawyers is the answer.  No names need to be mentioned.

Update: I did not mean to suggest that Novell was acting in any derogatory manner by pursuing their claims against SCO such that it will almost certainly be tossed into bankruptcy. Companies and individuals have to do that all the time when they do not get paid.  What is interesting in all of this is that SCO (with their lawyers no doubt) went to Novell and asked them to join in the scheme they cooked up.  To their credit, Novell said "no". But the very idea that SCO thought Novell should join in pretty much indicates that SCO knew from the start that Novell have significant interests in those SCOSource revenues.  And that is true even if the entire plan was not discussed with Novell. SCO knew that Novell held the essential copyrights and that Novell's other interests were important too. And why do you suppose SCO asked Novell?  SCO lawyers told them to.  So when you start to look for who is going to pay in the end you have to look at legal representations made by SCO lawyers.  And the public can not do that so easily.  But, SCO management can.  And those who might sue SCO management might just provide the impetus.

These SCO law suits have always smelled bad.  But, as more and more evidence comes to light it is actually amazing that any lawyers would get SCO into such a mess whether they are paid millions or not.


Sept 26, 2006 - Tuesday

11:11 AM PDT - IBM's Motion for Summary Judgment on SCO's Contract Claims (SCO's First, Second, Third and Fourth Causes of Action) (Groklaw)

Since SCO lawyers seem so proud of their contract claims against IBM, we can first cover the motion for Summary Judgment effectively nixing those claims.

We have gone over almost all of this before. Both here and over on Groklaw. But on these issues the rubber is touching the road now.

In their motion IBM says SCO's theory of the case is wrong as a matter of law, and IBM is entitled to summary judgment for at least three reasons.  Keep in mind the discussion below regarding the need that any determination reached in summary judgment be on the basis of a matter of law and not fact.  If it depends upon a determination of fact, the judge will need to summon a jury to decide what the facts are.  But, if it is a matter of the law the judge can decide now or later  It may still be appealed but the decision can be reached now.

Simply put IBM's arguments are as follows:

First: The agreements do not preclude IBM from using and disclosing its own original works, even if they were once (or in the future might be) part of AIX or Dynix.  This statement is not only true buy very important.  SCO wants you to believe that somehow the language in the contract gives SCO full and exclusive control over anything that touches Unix.  And for a company that suggests that the GPL is somehow illegal and unenforceable, this is a strange interpretation to put upon a contract.  It is also a strange interpretation to even be suggested by a subsequent party in interest.

Normally, the two original parties in interest decide what a contract means.  They write it up.  Sign it. And then begin execution of that contract. And yes, more often than we might want to admit, those two original parties end up disagreeing what the language means and what was intended by the original agreement.  For SCO to come forward now (even if they are a subsequent party in interest) and suggest some novel interpretation of the contract is not only rare but highly disfavored by the courts.  SCO was not even present when the original contract was executed.  How would they know what the parties intended?  The answer is they would not and did not. And the court knows that.  Give the judge some credit.  The court knows that even the original parties may not have fully understood what their intent was when the contract was signed.  Happens all the time.  So how could SCO possibly know?  This is part of what IBM is referring to when they finish their motion suggesting "that SCO cannot adduce admissible evidence sufficient to establish the essential elements of its claims...".

Secondly, IBM argues that even if the agreements could be read as SCO contends, SCO would be estopped from pursuing its theory of the case.

This is an argument in Equity.  Matters in Equity are considered separate and apart from matters of law although they are also decided by a judge.  Both estoppel and waiver can prevent a party from asserting legal rights even when if the language of the contract was clear and favored SCO.  Of course, IBM is arguing the language does not favor SCO. And I fully agree on that point. But, this argument suggests that IBM wins even if the contract said such and such as SCO would like. And the reason is that AT&T and its successors repeatedly told their licensees that they could do as they wished with their own original work whether or not they were part of a modification or derivative work of UNIX.

And, key here, is the statement that IBM and Sequent reasonably relied, to their detriment, on the representations, conduct, and inaction of AT&T and its successors.  Reasonable reliance is important because it makes a decision now against IBM highly unfair.  And above all matters of equity are decided based upon what is fair and equitable.  We all know about the phrase "technicalities of the law".  Well, this is one exception.  The argument here is that even if SCO were technically and legally correct, it would be unequitable to pin IBM down now in that way.  So, the court in its judgment can stop or estopp SCO from making such arguments.  And that is why it is called estopple.  It is preventing an argument because it would be unfair to permit it.  (The law is based upon commonly acceptable principles.  The matrix is just a bit complex at times.)

And that brings up the third argument, waiver.

The argument is such that even if estoppel did not prevent the argument regarding the interpretation from being made, the alleged breaches have been waived.  The word "waiver" being critical here.  IBM argues that AT&T and its successors waived it either by themselves or on behalf of SCO.  And SCO itself. (No doubt that publishing the code under the GPL by SCO could easily be considered a wavier by SCO.)  When you are assigned contract rights as SCO has in this case you do take those rights subject to any and all claims or defenses that the other party (i.e. IBM) may assert against your predecessors.  Simply put any claim of waiver or even estoppel that IBM could assert against AT&T, Novell or USL would also apply to SCO. This is firmly established contract law.  No question or uncertainty about it.

So when you take contract rights by way of assignment not only is the wording of the contract important but also the complete history of how it was executed or administered over time. No lawyer worth two bits would misunderstand that.

Fourthly, IBM argues that at least some of the allegedly misused materials are barred by the statute of limitations.  I believe this is the first time this has been mentioned in regard to RCU. So either I missed it earlier or it surfaced as a result of discovery.

Finally, IBM states that for the above reasons and for the reason that SCO cannot adduce admissible evidence sufficient to establish the essential elements of its claims, the court should enter the summary judgment in favor of IBM.  And note the reference here to a lack of sufficient evidence.  Or, the inability of SCO to produce the same.  You do not need to proceed with a jury trial if there will be no evidence for the jury to review.  And this is why a summary judgment is not just a mini-trial.   It is really a determination by the court that there is no reason to call a jury in.  Either all issues can be decided as a matter or law; or there is no viable evidence for a jury to evaluate.  Hence a decision can  be made right now.

We are all familiar with the "he said, she said" type of disputes.  This is not what summary judgments are all about.  Rather they are about no viable disputable evidence being forthcoming such that most if not all of the issues can be decided as a matter of law.  If you have to listen to what "he said" and then what "she said", you have to call in a jury. And that means no summary judgment.  Even if the trial is by a judge as opposed to a jury, a summary judgment motion will be denied and the trial will proceed as scheduled.  A judge does not try the facts in a motion for summary judgment.  Rather it is really a determination whether or not a trial is needed to ascertain the facts.

For the most part what terms in a contract mean is a matter of law not of fact.  And issues of equity such as estoppel and waiver are actually considered by what is called the court sitting in equity but are also decided by the judge not a jury. 

So in considering these motions you may look for two determinations.  The first is whether there are any facts that require a jury to decide.  And secondly are there any issues or matters of law that are determinative regardless of the existence or nonexistence of triable facts.

In summary, SCO has three independent ways to lose it all right here.  The contract does not say what SCO claims, any argument can be estopped or baring either of the first two the claim has been waived.  And it would appear a jury would not decide any one of them.

Juries decide facts.  They decide who is telling the truth and who is not to be believed.  They do not decide matters of law nor equitable concepts such as waiver or estopple.

So why do we need a jury?  That is the question the judge will be asking himself. And if he decides a jury is not going to be needed, the case can be decided by summary judgment.

I think almost all of the issues will be decided in summary judgment.  Some of the IBM cross complaints may not be.  Was SCO telling the truth to the public or not?  We might need a jury to decide that.  How much was IBM harmed by false allegation in the press about copyright violations (that never were brought before the court)?  We might need a jury to decide damages there. Juries can decide damages.

So in reviewing these motions and accompanying memorandum try to focus upon whether an issue is a matter of law (which can be decided now) or whether it requires someone to decide what the facts are and therefore requires a jury.

Not getting a summary judgment does not mean you lose the case.  It only means a jury must be brought in to decide the relevant facts.  (Or, if tried before a judge the judge will do that at trial.) Getting a summary judgment does mean you win on the merits but it may still be appealed.





7:45 AM PDT - IBM Asks the Court to Throw Out SCO's Entire Case on Summary Judgment (Groklaw)

This is one of those stories where you have to ask "Where is the news?".   The whole industry has been expecting this.  At least the part that can read Groklaw and follow these cases. [Strangely enough that seems to omit a few lawyers who try to speak out on these matters. No names here.]

At this point we do not have the actual arguments made by the moving parties. (Yes, even SCO has put up a motion for Summary Judgment as well.) And we do need to review both the arguments for and against the now pending motions.

But as we begin to discuss these motions for Summary Judgment it is important to understand what a Summary Judgment really is.  It is not just a mini-trial.  Sometimes it is described as such but that is pretty inaccurate.  And I doubt I can explain it simply enough to be understood completely yet accurate.

However, I will try.

A Summary Judgment is a judgment made by a judge standing alone. And this is true for both a trial by jury or by a judge.  When you do have a trial by jury, the jury is asked to make decisions regarding what is true and what is not true.  The jury listens to witnesses and reads documents, etc. And they are the trier of fact.  In a jury trial, the judge only makes decisions based not on the facts but rather based upon the law as the undisputed or jury decided facts may apply.

So when you have a Summary Judgment motion come up in a jury trial, the judge is really just trying to decide whether or not a jury will be needed. The judge knows the difference between matters of law and matters of fact.  And if significant facts are in dispute, a jury will be summoned and asked to listen to the evidence and decide who is telling the truth.

So in order for any party to win a Summary Judgment they have to convince the judge that there is no need for a jury at all.  And that can be the case because facts are not in dispute between the parties or the case can be determined without regard to any of the facts in dispute.  In the later case, the judge can simply decide the case as a matter of law.  Matters of law may still be appealed.  But juries are not called for.

When reading motions for Summary Judgment and their arguments look for the statements suggesting that a jury is required or that a jury is not required.  It is not really a matter of who you might believe.  Or who the judge might believe.  In a jury trial, the judge does not decide who is to be believed.  The judge simply decides whether some one must make that determination.  Hence a jury.  And hence no Summary Judgment.

It is not really a test whether a case is a slam dunk or not although that analogy is not too far off.  If the judge can see that there is sufficient evidence produced by a party that if believed by a jury would support a decision in their favor, a summary judgment by an opponent will not be granted.

Of course, in SCO's case they have a surprising lack of evidence on many issues.  So these motions are really a cut or die process for them. SCO must show some evidence.

If you will recall the first time many of these motions were originally raised by IBM, SCO failed to respond with evidence. And it was noticeable by the court itself.  SCO only really complained that it had not had time to do discovery, etc.  That is a pretty poor response but I guess that was the only response SCO could make.  This time is different.  Discovery is completed.  Or, practically so.  So this time if SCO does another rope a dope, IBM is likely to get a few Summary Judgments issued in its favor.

Just remember that when there is a legitimate dispute as to what the facts are, a Summary Judgment will not be issued by the court.  Unless for one reason or another some matter of law is determinative regardless of the facts.  So a judge can dispense with a suit or some of the causes within a suit when matters of law decide the issue.   In other words, a judge does not need to have a jury listen to the testimony, etc., if the issue will be decided one way or another regardless of what they decide.  Matters of law are always decided by the judge.  So in many cases what the jury may think is not important.  At least it may not decide the case.  And when the judge decides that is the case, the court does not bother wasting their time.

Most important for SCO the contract issues may very well be decided by the court as a matter of law.  SCO was not the original party to the contract.  And SCO certainly will not have any witnesses that will be able to testify as to what the contract was supposed to accomplish.  SCO may wish it were this way or that way.  But, they were not involved at the time nor during much of the history during which these contacts were in force. So SCO is going to have a very tough time trying to convince anyone that the contracts should be interpreted to their favor. Besides interpretation of contracts and indeed many of the contract issues such as waiver, estoppel, etc., are matters of law anyway unless there are serious issues of who should be believed.  (And I do not mean SCO lawyers versus IBM lawyers.)  For the most part decisions about what terms in a contract mean or do not mean are matters of law not questions of fact.  And should the court decide that the wording of contract favors SCO as a matter of law (and I doubt it will), many of the defenses offered by IBM are also issues of law and less so of fact.  So it is likely that the contract issues will be decided in Summary Judgment even though SCO and IBM lawyers may disagree as to how the contract might be interpreted. There may not be any issues of fact that a jury would have have to decide.  Or, if there are, it is possible that the court will be able to decide the issue based upon matters of law making the trial of any facts rather moot.

As PJ suggested in her article linked above, SCO could be left standing with a number of Summary Judgments nixing their entire case yet be called to defend some of the IBM cross complaints at trial.  (That has been known to happen.)  And if so, combined with SCO's lack of any money to speak of, is going to be a great incentive to settle the rest of it.

So it is going to be interesting to see what if anything survives these motions for Summary Judgment.  Or, if SCO will even be around to get the bad news. (See some of the discussion below regarding SCO v. Novell.)


Sept 22, 2006 - Friday

1:18 PM PDT - Novell's Amended Counterclaims - A Chart Showing What's New (Groklaw)

I have to agree with PJ on her suggestion that the two most important changes to the counterclaims are the request for a writ of replevin and punitive damages based upon the charge of conversion.

Conversion is simply the civil claim equivalent to theft.  If you commit a theft you can be tossed into the slammer for taking something belonging to someone else. Conversion is simply the legal process by which you can be forced to pay for whatever it was that you took.  And that is what is called a tort or a civil wrong.  And since it is an intentional tort to can come with punitive damages so that the defendant is discouraged from doing so again.

Of course if you believe that cash is important for SCO right now, the writ of replevin is going to have the most dramatic affect.  As I recall, the license fees collected by SCO from SUN and Microsoft approached $30 million or so.  And according to the amended complaint, SCO has only $9.5 million or so in cash or equivalents.  And that tells the judge right now that if Novell is successful in its claims, SCO is unlikely to be able to pay up.

This brings up a number of issues.  First, the court must be convinced that Novell is likely to succeed in its claims for the revenue from those licenses under the APA.  Or, I should say SCO must talk fast and sweet in order to convince the court those funds are not due to Novell.

We are talking bankruptcy on a stick here.

A writ of replevin can be executed when issued by the court. And it is pre judgment.  The judge will want to hear all the facts regarding Novell's claim to those revenues and any excuses that SCO may have for not turning them over to Novell. But, all of the other issues in the case can wait.  The IBM case can wait.  The Red Hat case can wait.  Even the rest of the claims/cross complaints in the SCO v. Novell case can wait.  If the judge can decided that in the end Novell would be entitled to those revenues, the court is able to issue the writ with haste.

And that is likely to throw SCO into bankruptcy.  As you know many companies go into and out of bankruptcy like it is some kind of sales event. And sometimes it is.  Properties do tend to be sold or refinanced, etc.  But you generally do not see fresh money showing up in equity positions unless there are substantial amounts to be washed out otherwise.  And that is not likely to be the case for SCO.   It could be. But I doubt it.

And you have to keep in mind that the writ of replevin is going to be for the $30 million or so not the measly $9.5 million SCO claims to possess.

It could turn into a fire sale of sorts.  Or, bankruptcy will be filed and a trustee in bankruptcy is going to take over the company.  I have discussed some of the possible scenarios for bankruptcy before.  But, the nutshell explanation is that someone else is going to be calling the shots.  Not SCO management. And not the current SCO lawyers either.  Someone else.  The trustee is very likely to take all of the paperwork, run it down the street to a new set of lawyers and have them assess the best course of action in the interest of the SCO creditors.  And the SCO creditors are not the currently management nor their lawyers.  Certainly the management and their lawyers could be creditors too. But most likely the management and the SCO lawyers got paid already.  And that in part explains the lack of funds in the bank, right?  So things are likely to change.

And you can bet the Novell lawyers right now know that.  The Novell lawyers could have delayed this eventual bankruptcy simply by not asking for the writ of replevin.  Of course that might mean Novell never does get paid.  But, it is much more likely that the thinking is that Novell is going to be much better off when SCO does go into bankruptcy.  You have to go through the scenarios.  And the most significant is that the decision makers on the SCO side of all of these law suits are going to change.

Maybe SCO will finally get that buyout offer they thought would put them in fat city.  IBM could be interested.  Even SUN might entertain the option. But it is not likely that Red Hat would even care except to get SCO out of the industry.  And AutoZone just wants to sell its parts, etc. Novell on the other hand has a very good reason for buying out SCO. But at firesale prices, etc.  And for a full discount off the cheap price to account for those license revenues.  IBM would most likely stay out of any bidding just to help out Novell a bit. And SUN would figure it is better off not stepping into this anymore than it already has.

Novell has some $30 million in receivables from SCO to bid.  And a quick check with the stock price for SCOX at $2 or so suggests a market cap of $40 million plus or minus.  Of course you can not buy out the company with bogus receivables.  But you can get a writ of replevin with them. And that could and most likely will cause a sale of sorts.

Stay tuned.  Things are likely to happen sooner rather than later.


Sept 21, 2006 - Thursday

8:19 AM PDT - Adobe, Symantec ask EU to ban Vista bundling(CNet, the censorship group)

I guess things are heating up for Adobe and Symantec (more below).

As indicated below, Symantec is going to have a tough time from a legal perspective. Adobe significantly less so.

Adobe is not trying to sell an operating system, any part of it or anything to do with it such as security.  Symantec is. So why the article does indicate that Microsoft has been required to offer of a version of the OS without the media player, it (Microsoft) has also invalidated any impact such an unbundling may otherwise have by way of price manipulation.  The EU Commission needs to do more than simply require a separate distribution which Microsoft can discourage anyone from wanting.  If there is no price difference, few if anyone will care.

Bundling of applications with the OS is extremely effective for a monopolist and extremely harmful to consumers and the industry. And so far Microsoft has not been required to comply with the law in that respect.  The result is obvious.

7:58 AM PDT  - Symantec on the attack over Vista security features(InfoWold)

It would appear that Microsoft customers are in for some troubling times with Vista.

Regular readers already know my opinion that Microsoft can most likely keep others out of the kernel if they want to.  While that may only be the case initially with the 64 bit version, in time that policy is likely to be implemented across the board.

Antivirus software is unlike normal applications.  It is much more like OS functionality. At least one of its primary functions is to protect the OS itself from attack. And certainly Microsoft has a legitimate business interest in doing that.

I may feel for Symantec and others, but their legal case is going to come up short.  They may be able to accomplish something politically or by way of settlement. But I do not think they will ever get a court of law to require Microsoft to give them equal access.  Historically Microsoft has ignored may of these issues and just counted upon the Symantecs in the industry to bail them out.  No longer. For whatever reason.

And, as the article suggests, the result is likely to be very confusing and a significant burden for users.  Most everyday users today can not fathom the complexities of antivirus. And it is going to get a whole lot worse. Even the difference between 32 and 64 bit is going to confuse all but a select few.

I guess this is what happens when security is an afterthought.



Sept 14, 2006 - Thursday

1:03 AM PDT - MS Vista worth $40 bn to EC economics (The Register)

This study is obviously from Microsoft's "were are so important to the economy that we should not have to comply with antitrust laws" folder.

But, of course it does not mean that at all.  If Microsoft's business is so important seems to would make a lot of sense not to insist upon illegal practices which could get that "business" deferred? Right?  I mean, most businesses avoid engaging in illegal practices such that they can continue in business.  Not Microsoft.  They are so arrogant and ignorant that they want the laws to change in order to help them out.

But the other side issue here is based upon where they get this $40 bn benefit for the EU?  What would it be if Vista were illegal and everyone had to convert to Linux?  Would it be $80 billion?  Or, $10 billion?  If Linux costs so much less, of course the value to the economy would be less as well.  And all those customers would have $30 billion or so to spend elsewhere, right?  This is not just new money that only exists if Microsoft is able to avoid antitrust laws.  And if converting to Linux would cost more (i.e. something Microsoft would even suggest is true), then the benefit to the EC economy from a conversion to Linux would be even better.

What is the implication of the $40 billion?  That much more business.  That many more jobs, right?  Well, what would a serious conversion to Linux bring?  How many new businesses and jobs would spring up?  And how much more intelligent would those employees be by the time a conversion takes place.

What does IDT think?   That spending huge amounts of money is only "good".  Maybe it is. Maybe it is not.  But, you have to compare Vista to the alternatives not simply claim that spending a bunch of money means they should not have to comply with the law.  And that my friend, is exactly what this paid for study is suppose to suggest.  It does not suggest that. But Microsoft thinks consumers and politicians are so stupid that they will believe that is what it means.

There is no doubt that many countries are focused upon open source products including Linux because of its impact upon their local economy and the local technological industries.  So maybe "Linux" should take Microsoft's lead here and have a few studies conducted as well.  Studies that show just how beneficial it can be to many countries to go with Linux and open source.

Interestingly enough all those jobs that Microsoft and IDT want to point here are either sales or service based, right?  Certainly they would not be R&D type jobs.  You know, the kind that builds a local software industry that many countries really need.  They do not need just bigger bills to pay. And that about all Microsoft is suggesting here.  Microsoft customers are going to be paying that $40 billion dollars, right?  Certainly.  That is the only place it can come from.

So the question is whether Linux would have a greater impact upon the economy or a lessor impact.   Now that would be a meaningful study.  This garbage that Microsoft should not have to comply with the law because it is so important is for the birds.   Yet, some idiots out there will be confused and fooled by it.

Certainly Microsoft is not putting out this study to inform their customers about the big expenses coming up, right?  They would not do that. So it must be to fool the politicians, etc., into thinking that antitrust laws should be ignored in order to "benefit the economy".  Enjoining Microsoft from doing any business in the EU for 5 years would most likely have a much greater benefit to the economy.  And the EU would have something to show for their efforts in the end.

Sept 13, 2006 - Wednesday

11:17 AM PDT - And now this. What will it take to get Linux on the desktop?

There is a related article below (earlier) titled "Windows will beat Linux threat."

But the real question is what will it take to put "Linux on the Desktop"  on the minds of those who need and use the technology?

The answer I think goes beyond the issues that technologists usually come up with.  Commonality between the distributions, etc. is always mentioned but I do not think that is very important.  It is important if you want to mix and match the Linux distributions you use. But most potential customers are already familiar with the practice of sticking to one distribution (namely from Microsoft).  And certainly the ease of switching to another platform can not possibly be an issue for anyone buying or using Microsoft products.  So it is not likely to be an issue for those thinking of switching platforms either.

Having applications that run on Linux is important but somewhat dependent upon the target marketplace.  Certainly the enterprise customer could care less about Quick Books running on Linux. A very small business might be interested.  A small business that currently uses Quick Books (or any other business application) would find the availability of that application on Linux a "must have".  And that is even more so than say MS Office, etc.  There are several means to run the most popular of the Microsoft applications on Linux (i.e. Win4Lin, Wine, CrossOver Office, etc). And certainly for the home user, games and a number of consumer oriented applications are important (i.e. QuickBooks, TurboTax, etc).

But, we tend to focus too much attention upon the technology or the applications and sometimes forget that few technology products sell themselves.  Microsoft most likely would not need to advertise or sell its OS at all.  It is in a monopoly position but more importantly many common applications have it as a prerequisite.  If you are selling the prerequisite you do not need to do much at all. But even they pay money or reduce costs to get advertising slogans such as "MS XP recommended" even when no alternatives are available to consumers.

Linux on the desktop does not have that advantage.  For Linux, the sizzle needs to be sold. And I do not mean the rather mundane advertisements by Novell suggesting that "Linux is now available".  Those distributions that want to expand the Linux desktop marketplace are going to have to advertise and sell the sizzle and forget the steak.

If SLED 10 offers advanced search on the desktop (and it does) then that is the capability that needs to be advertised.  Right in the face of consumers.  If the advanced graphics offers capabilities similar to or even better than suggested by Vista (still a vaporware product), then that is what needs to be promoted and advertised.

Potential customers need to change their perception that Microsoft is the only choice available to them. And the only way to do that is to show what the alternatives can do.  There are at least three Linux distributors who claim to be pushing Linux on the desktop. These would include Novell, Xandros and Linspire. You could include SUN on this list too. At least these three or four vendors intend to make selling Linux a profitable business as opposed to it being a technological effort, etc.  Red Hat is both interested and established as a server OS. But, they have shown limited interest in putting Linux on the desktop.  This may change.  I think it will.  And I think Ubuntu and perhaps even Google may get seriously interested in this direction as well. But, today we are limited to Novell, Xandros, Linspire and perhaps SUN or Mandrivia.

But what is it going to take to push that market?

Old fashioned advertising is the answer.  Apple knows how to advertise. At least once in a while.  Even Microsoft likes to advertise. Although for them I always wonder why they bother.  Once Linux on the desktop kicks off for good, no doubt Microsoft will find that extensive advertising will be somewhat affective in keeping Linux at bay. But, that is why Linux has to begin to develop those advertising campaigns that can cause the phone to ring.  Notice how AOL thinks that security issues provide at least one reason to call them.  And they still tell you to buy from Microsoft. Just think about the attention the consumer may develop if Linux can convince consumers that viruses, AV software and all that trouble they experience can be avoided if they just run Linux instead.  That advertisement with the PC guy and Apple guy needs to have a Linux customer too.  The consumer needs to feel that if Linux is used instead of anything from Microsoft, they are going to be better off and spend a whole lot less of their personal time screwing around with AV software, spyware, etc.  Just quoting the Microsoft suggestion that users should pay Microsoft $50 a year for security services unnecessary with Linux is essential.  Consumers need to know that.  (Or, maybe Linux distributors can offer the same services for only $5 a year, etc.) IT managers need to know that. Some do. Some do not. So when a company switches to Linux and saves hard money not having to deal with the Microsoft security issues, that is the testimonial that needs front row attention. So you see that on TV?  I do not.

What is the point in all of this?

Linux on the desktop is not going to sell itself.  Novell, Xandros, Linspire and others are going to have to advertise.  They are going to have to promote whatever it is they want to sell. Linux does have significant advantages to consumers. But consumers simply do not know it.

And that is going to be tough for the Linux distributors.  For Linux, advertising is a bit like raising the tide.  The expression is that a rising tide raises all ships in port.  And it does do that. And for Linux, advertising will benefit all Linux distributors to a great extent.  But, that is precisely what is going to be needed if Linux on the desktop is going to succeed.

Perhaps the distributors need to look to almonds for some guidance.  And a number of other mostly agricultural products advertise the same way. Suggesting you buy one can a week does not necessarily help Blue Diamond (an almond distributor). But, it does encourage consumers to buy more almond products which does include Blue Diamond products.  And, of course, those advertisements are sponsored by industry associations not individual distributors or farmers. So, maybe it will be essential that Novell, Xandros and Linspire (as well as others) join together in some form of a marketing organization to advertise the common benefits that the Linux platform provides for consumers (i.e. better security, less viruses, etc.). And that could leave the individual distributors to promote those features that may be somewhat unique to their own distributions. CNR (Click N Run) for Linspire, the file manager or CrossOver Office for Xandros and Beagle or FSpot for SuSE.  But, where are those advertisements?  We all know that putting up a web site is not enough no matter what you are selling. Even if you have a monopoly, as Microsoft does, advertising is essential.

Consumers need to be educated that many alternatives are available to them.  They need to be educated that Microsoft is not the only choice.  Or, that Apple is not the only alternative.  They need to see real customers (or even actors) claiming to be pleased that they are running Linux to complete their daily communication with members of their family, etc.  (Uncle Edar always has trouble with viruses, but he still runs Windows, etc.).

The real battle between Microsoft and Linux will only begin when Linux distributors begin to advertise in earnest.  The potential revenue is there. The marginal cost for additional copies of the software is minimal.  Microsoft knows that too.  And Microsoft will advertise a whole lot more once their revenue stream is truly threatened.  Microsoft will have 10 dollars to spend on advertising for every one available to a Linux distributor. And that means that the Linux distributors have to do a better job.  They have to have better advertisements. And they have to have better points to make. Simply put they have to focus upon the high price of Microsoft products and the high maintenance costs that even Microsoft recommends they should spend every year.  "Microsoft suggests you should pay them $50 per year for a service you either do not need or get free with Linux.", etc. "Symantec even suggests you pay them every year if you use a Microsoft product but do not suggest it is needed for Linux", etc.  Linux has to learn to play some hardball too.

One of the very real advantages that Linux has over the Microsoft platform is the diversity of the product and the ability of any one distribution to focus upon a particular market segment.  Red Hat does not need to offer a consumer version of the OS if Linspire and Xandros do (provided they advertise).  Novell can focus upon the enterprise space and ignore the individual consumer if they want to.  Xandros can focus upon the small business customer. And Linspire can focus upon the individual or home user.  And all other distributors can focus as they care to do.  And, of course, the advertising will reflect the targeted market. That is a very real advantage that "Linux" has.  It also complicates what Microsoft might do.  Microsoft might wish there was only one Linux distributor.  But, there are many. And one attack upon Novell or Linspire may not apply to the other distros.  And the various Linux distributors need to point that out when it occurs.  Linux distributors do compete against themselves too.  And product differentiation is important.  It is very important in advertising campaigns.  Why should you buy a Linspire machine instead of one from Xandros?  Or, Novell?  Does the consumer know?  Do they even know what advantages they may have over Microsoft?  Aside from initial costs, maintenance costs, AV software costs, trouble and support?  With Linux and OpenOffice consumers can save $750 each compared to Microsoft alternatives. But, consumers have to be told that. It has to be advertised.  Otherwise consumers remain ignorant and act accordingly.

Technologist tend to know the advantages that one platform has over another.  But, the consumer does not.  And that is where advertising has to play a role.

The Linux industry can not take the simple minded view evidenced by the article below, "Windows will beat Linux threat".

Rather it is going to have to promote and sell Linux like it is a profitable product.  It is going to have to do more than just get it into the appropriate channels.  And it is going to have to do more than simply announce it is available.

The success of Linux on the desktop is in the hands of the major Linux distributors.  Not in regard to the technology.  And perhaps not even as far as applications go.  Or, even development tools.  But, it is in their hands from the standpoint of marketing and advertising the various distributions. Linux on the desktop is not going to sell itself.  Simply put, consumers are too lazy for that to be the case.

Consumers need to be told they can save $750 by going with Linux and OpenOffice. Do not expect Wal-Mart to point it out. It may exist in the fine print on Wal-Mart. But they will not focus on it. Wal-mart is just as happy to sell a Microsoft machine. Maybe more so since it costs more.  Novell has to tell consumers that their systems with SuSE and OpenOffice cost $750 less than a Microsoft machine "similarly equipped".  If that is the magic number.  And if Novell wants to sell to the enterprise, their advertisement can assume 10,000 employees for a $7.5 million difference.  You know, sometimes IT managers act dumb until a run of the mill employee asks why they are not saving the big money.  Of course it is not all about the initial cost savings going with Linux.  But, the $7.5 million dollar number can be a real one. And the more regular employees know the more likely that the IT manager is going to be much more responsive and responsible.

What was that "truth or facts campaign" that Microsoft came up with?  Linux on the desktop needs a similar effort. And if you really can outfit an entire company or government saving $700 or $750 per employee, that is a fact that needs to be advertised.  Today most consumers (also employees) are ignorant of the available choices and their comparative costs.  That needs to change if Linux on the desktop is going to become a reality.  You have to advertise the advantages your product has over alternatives.  Linux is not going to sell itself.


9:25 AM PDT - The hard disk drive turns 50 (InfoWorld)

What does a story about the hard disk drive have to do with Microsoft?  Nothing really.  Nothing at all.

Those in the industry all have their first encounter with a hard disk drive to talk about. Many in the PC or desktop industry may think that the IBM PC was the first personal computer device to offer that capability.  As I recall the original IBM PC was deskette based but shortly thereafter IBM did offer a 10 megabyte hard drive.  Wow you say?  That was really something.  Then of course.  Today it would be inadequate for a USB plug.

But, of course IBM was not the original vendor offering hard disks for desktop systems. I believe that honor goes to HP.  Yes, the same company that seems to have their board of directors making a lot of news of late.

I have mentioned some of the old HP gear before.  But, in 1972 HP introduced their desktop programmable calculators which sported a scrolling character display, high speed thermal printer (250 lpm), letter quality printers (15 cps), plotters, digital tape units and yes, even a hard disk drive.

Check out the link immediately above on the HP 9830A if you are not familiar with this unit. It was really amazing for its day.

The hard disk only held 5 megabytes but it came with a controller that permitted up to four desktop units to share access to two discs.  Not even the IBM PC which was not introduced until some 7 or 8 years later had that capability.  So for HP desktop users, file sharing was readily available in addition to the very real benefits of quick random access to what was considered at the time as being "unlimited" storage.

I remember running down to the local HP sales office in order to see if I could port my word processing software written using tape drives, etc., to the random access world of the hard disc.  It took all of about 3 hours time to see just what home grown software could do if you got around the disadvantages of a serial tape data storage limitation.  And, of course, when your RAM was limited to 8k or so those restrictions were considerable. Well, as it turns out, I did not buy the hard disc unit.  As I recall it cost about $5000 and I could not justify it solely on the basis of increased productivity.  Besides the software was already written to allow much of the busy work to be batched a bit while you ran to top off your coffee cup.

Of course, I did not know you were not supposed to use that technology to write word processing software or accounting applications. And in those days, no one (including HP) was trying to sell desktop machines for business use much less a law office. They were only intended for engineers, etc.  Years later HP brought out their HP 95, 97, 98, etc. And then their TouchScreen unit. And HP finally dropped their firmware for DOS and went with their clone line. But back in the early 70's you had to call up HP, IBM and Wang and ask them what they had to sell.  Different world.

To be honest I do not recall just which year HP introduced that hard disc option. It was a bit later than 1972. Most likely in 73 or so. Quite a machine for sure.  And allowing four users to jointly access a single or dual disc was quite valuable in those days.  Networking anyone?  Or, maybe I should say file sharing. 

Okay. Back to the grind.

[Update: A few other technological issues did surface during those early interesting days. One was the floppy disk.  For the HP 9830A referenced above HP never did bring out a floppy disc unit for it.  They thought about it. And some third parties did sell floppy disc units you could attach to the Hp 9830A. But, Hp never felt that the technology had proven itself reliable enough.  You have to keep in mind that HP was selling these units to engineers, etc.  So data reliability was critical. It may seem strange but HP focused upon their data tape drive (small cassettes which held about 80kbytes) and of course the hard disk drive (5 megabytes). As I recall the hard disc unit consisted of two platters. One was removable and could be swapped out and one was fixed and permanent.  The other great technology of the day was the spin writer or daisy wheel printer. I do not think HP ever made one of those. But the name Diablo comes to mind.  It was an improvement over the noisy solenoid units made by Facit and sold by HP. And it even bested the converted IBM typewriters that IBM was selling at the time. The daisy wheel units were not only faster (30cps vs. 15-20) but also a lot quieter. Those early LQPs (letter quality printers), as they were called, were noisy as hell.  Fire one or two of those units in an open office and everyone has to leave.  Or, at least wants to. We are just lucky the laserprinter came along as quickly as it did.  As mentioned above, the thermal printer from HP was both quiet and fast. Uppercase only and thermal paper. But very fast and office quiet. Not really bested until the laser printer came along. Ah, those old days when things were a bit simpler and less complicated. And Microsoft had absolutely nothing to do with any of the above.]


Sept 12, 2006 - Tuesday

9:37 PM PDT - Windows will beat Linux threat, say academics (NetworkWorld)

The problem with studies like this is that they tend to over simplify the model.

I would agree that major customers such as governments and large corporations are critical if Linux is even to knock out the Microsoft monopoly on the desktop.

The article mentions one factor that could allow Linux to win.  The study suggests this is because buyers might be more comfortable having access to source code.  Of  course, the study then suggests that is one reason why Microsoft has provided limited access to code. But, who says that is the only reason why an organization might choose Linux over the Microsoft platform. Certainly there may be many reasons for doing so.  There is little doubt that SUN, IBM and Novell are seeking alternatives for reasons other than simple access to source code. And as between those three major companies, their own reasons differ. So where is the assumption that access to source code is the only incentive.

Governments and major corporations take many factors into account when deciding upon a platform.  It is not just access to source code. It is not just the initial cost. And it is not just TCO either.

The would also suggest this study fails to even attempt to measure the impact that three major technology companies can have on the perception by other customers as to the viability of an alternative platform.  Certainly if SUN, Novell and/or IBM can run their organizations on Linux (which happens to be open source) that itself can have a very dramatic impact on the decision by many organizations. Imagine the impact if you will if those three technology companies focused upon using Apple products?

I also do not see any evaluation of what it may mean when many foreign governments adopt policies that either favor open sourced products are actually direct their own efforts to develop additional versions of Linux itself.  Certainly any study worth reading should not ignore the impact that China might have on the industry when it gets up to steam with its own version of Linux and focuses upon using that home grown technology across its information systems.

Personally I find the study a bit shallow.

And I would not find it a surprise to learn that pirated copies of the Microsoft products actually helps Microsoft.  I think they (Microsoft) have known that for years.  Even if Microsoft does not earn the revenue, that kind of distribution certainly does help them dominate the industry. And I am sure they feel that their efforts with the help of the SBA and their own anti piracy efforts come with a built-in counter value.  If you may everyone pay for it, those customers will be looking for a cheaper alternative. And you certainly see that in operation in some of the lessor developed countries.

There is no doubt that any effort to get all your customers to buy the full price of a product has an impact upon all customers including those corporate accounts that may not be fully licensed for the software they use to individuals taking software home to their own PCs, etc.  The entire effort by Microsoft to make every one pay acts to increase the cost differential between Microsoft and a Linux distribution.

The other significant factor that this study appears to overlook is the impact over time with multiple Linux providers (distributors) offering differentiated products to all kinds of consumers.  Red Hat is focused upon one kind of customer.  Xandros is focused upon another.  Same with Novell (SuSE) and Linspire.  And then you have Linspire and Ubuntu. These are not identical distributions. Some are focused upon the individual user or home user. And some are focused upon the Enterprise customer.

And the truth is that corporate accounts are going to look at the total package of software and services when deciding upon a vendor or supplier. They are going to evaluate vendor tie-ins, TCO, ease of support, costs to switch, alternative support options, the whole list if you will. Expecting a consideration of whether you can see the code or not to be determinative, is simplistic at best.  There is not just one factor in play. There are product tie-ins, dependency upon old technology and even the need to stay with dollars invested previously (not to mention IT managers who own MS stock).

Simply put the Linux threat as you may describe it today is not going to be the same as the Linux threat down the road.

Novell is just getting started with its push into the Enterprise Desktop market.  Linux on the desktop may have been around for quite a while.  I think it has. But, you can not really assess the impact that such a product can have on the industry until several serious efforts are made to push that market.  Just the fact that a corporate account could pick and choose between Ubuntu, Red Hat, Novell, Xandros, Linspire, Mandrivia and others for enterprise level support is going to be critical.  Sure Microsoft is there. But even the AV vendors who have supported the Microsoft platform since the beginning are limited in what they can do and what they can promise potential customers.  Right now they are thinking they may be squeezed out of the market in part because of restrictions placed on them by the closed code.  No Linux distributor will ever be so restricted or restrictive. And, yes, that may be so because customers themselves can not only see the code but change it if need be.  Yes, it is a comfort to have access to the code. But that is by no means the only factor in play.

Linux and open source will come into its own.  It may take some time. But, I think it is highly short sighted to conclude against it.  Just because you can not evaluate the concepts or factors that will cause a particular result does not mean it is excluded.

SUN, IBM, Novell, Xandros, Linspire, Xandros, Ubuntu, Red Flag and a host of others all have an interest in seeing Linux succeed not only on the servers of the world but also the desktops.  And that "host of others" includes such efforts as the one laptop per child.

I would agree that Linux is not going away. But what that study fails to consider is the impact that the technology can have on other technology companies in the industry once Linux on the desktop becomes a viable source of revenue.  Certainly Novell is looking at this. But Novell is not alone.  Xandros, Linspire and Mandrivia are as well. And just what does Ubuntu (or even Google) have up its sleeves? And what is going to take place once the Linux desktop market takes hold?

The Linux Desktop market has all the promise of being a highly competitive one. Customers are not going to be locked in as they are with Microsoft. They will not pay Microsoft prices either. And they will have a choice of products available to them. And, yes, do not forget that source code is right there for their own self protection if that needs to be the case.  Microsoft offers none of that.  Microsoft has trapped many customers. But the value proposition is missing.

Can Microsoft stem a possible tide by lowering prices?  Possibly. But, currently they are increasing prices to take advantage of trapped customers and engaging is many efforts to make every one pay more.  For intelligent customers, that opens the door.

Ah, the job of being an economist for Microsoft. Do you raise the price and milk your customers?  Or, do you drop prices to maintain the market share?  I have mentioned the comparison a number of times within this blog.  A ten percent drop in price hits the bottom line the same as a ten percent loss in market share.  Both can seriously cut into revenue. And if both ever hit Microsoft, shareholders will not be happy.

So is this study just wishful thinking?  Perhaps it is.  But I seriously doubt it reflects what the industry is going to be like in a short while.


Sept 11, 2006 - Monday

12:27 PM PDT - Millionaire cosmonaut takes on Microsoft (Reuters)

I guess the only real news here is that Reuters has picked up on it.

Certainly, the Ubuntu distribution has been around for a while even if it is just now picking up some well needed support.

I have to agree with the statement from Shuttleworth that "Ultimately open source is the platform of the future".  And that is the case because it is not restrictive as proprietary solutions. And that is key.

It is one thing to suggest that having access to the source code is of little importance to a given customer (including myself) but it is completely different when assessing the value of having that kind of access to the technology for a growing or undeveloped economy. And that is not to say that highly developed economies do not also benefit from open source. Certainly they do as well. All you have to do is look at the currently available distributions: Red Hat, SuSE, Xandros, Mandrivia, Linspire and even Ubuntu.  These are not distributions that have sprung up in third world economies at all. Mark Shuttleworth may be from South African but it would not be correct to suggest that the Ubuntu distribution has been developed out of the economy of the so-called third world.

Open source and the Linux platform is certainly technology that is readily available to any country or economy if they have the wherewithal and intelligence to understand what it may mean to them over the long haul.  Countries and economies all over the world can realize very substantial benefits from hitching their futures to open source and Linux in particular.  The value in adopting or using any proprietary technology (regardless of who it might come from) has only a limited list of benefits.  Being able to use a product does not compare to the very real benefits of actually being able to participate in its development and grow local expertise and companies that can expand the local economy.

Microsoft can claim that "open choice" is the issue rather than "open source". But that statement does not even make sense.  Consumers and those in the industry can have all the open choices they may want without even thinking about Microsoft's restrictive offerings. That is just hog wash coming from Microsoft.  They are expected to say something but simply can not come up with any viable explanation of benefits that compare to open source or even Linux in particular.  There is little or no value to any customer to use a closed or proprietary product except to continue today with the least disruption. And that does not exist for those just now realizing the benefits the technology brings.

The article mentions governments in Brazil, China, Spain, India and Malaysia are already using Linux based systems. And yes, it can greatly reduce the cost for these countries to get the technology into schools, etc.  But, most importantly is that the technology is truly open so those students can learn a whole lot more than how to navigate around the window manager or run a particular application. The value proposition for open source far exceeds anything that a closed or proprietary alternative can provide.

And there is a very real risk for the top developed countries that they will fall behind the so called underdeveloped countries simply because they will not adopt open source fast enough to keep up with the developing technology in these so called disadvantaged countries.

Simply put a so-called Microsoft expert is going to be ignorant compared to the wave of Linux experts that will be developed.  Microsoft people are limited to pushing buttons. Open source users/developers will be the engineers that design the buttons that the lessor qualified learn to push. And that is a very real risk for the so-called advanced economies.

The US educational system needs to pick up its pace in regard to open source technologies or be left behind. And the same is true for other advanced economies. Microsoft only seeks to lull them to sleep at their peril.




Sept 4, 2006 - Monday

11:10 AM PDT - Open source needs a profit motive (InfoWorld)

Well, I guess it is easy enough to suggest that open source (or Linux) needs profit motive. Certainly any product or concept will benefit from additional motivation. But, who says open source lacks that?

Certainly it is true that many individuals may participate in the development of any number of open source projects without necessarily having the profit motive in mind. But that is not a limitation of any kind. Rather it is an empowering alternative.  In other words, open source makes sense even without the motive of making a profit.

In fact, it could a motive of saving expenses in the case of avoiding outside and perhaps expensive support alternatives.  It could also be a motive associated with scratching that inch as suggested by the article (and The Cathedral and the Bazaar ) but the point here is that additional motivations even if the major one are not exclusive.

Simply put, contributing to an open source project because someone has an itch does not eliminate nor preclude additional motivation based upon a profit motive.  Indeed, SUN, IBM, Red Hat, Mandrivia, Xandros, Ubuntu, Linspire, Novell and a whole host of other companies do have a profit motive for their participation in the open source movement.  If that is what you want to call it.

Even Microsoft itself pretends to support open source in one way or another when it seems to suggest additional profits (or lessened costs) to them.  Or, simply when it seems to be of some value to potential customers beyond what the absence of code can provide.  Even if you disagree that Microsoft does anything of value with open source, they do recognize the value proposition that it offers customers and does try to suggest to them that they should participate. And that is so even if it is only to suggest to customers that reading the code may relieve some concern that backdoors, etc., may be present.

I would suggest it is wrong to argue that open source lacks a profit motive.  If that is a motive you are interested in, there are many ways to participate therein.  And they can range from being able to develop needed skills that may or will likely enhance one's prospects in the labor market to developing technology that can provide the basis for a  business based upon support revenue.  It would simply be wrong to suggest Red Hat must not exist at all because it uses open source.  Certainly, Red Hat would argue that open source does have a profit motive.

And I do not think you can suggest that ODF is some kind of proof here.  Certainly plugins do provide an alternative to switching to OpenOffice or StarOffice. But, the ability of MS Word to provide the accessibility which seems to be at issue there is in fact provided by companies other than Microsoft.  So in the example provided by Massachusetts, plugin provide access to ODF documents and the accessibility options. Both are external to what Microsoft is developing.  (Save for the fact that they too support the development of an ODF plugin. An open source one, by the way. And that would seem to lack the so-called profit motive as well. Although I do not think that is the case.)

So I would disagree that open source lacks a profit motive.  It has that as well.  It may not be as significant as the "scratch your own itch" idea. But, they are cumulative.  Or, perhaps "inclusive" should be the more appropriate term.  Open source benefits from the profit motive, the desire for alternative support means and methods and the ability to permit anyone to scratch their own itch and contribute.  Closed source does not offer the latter two capabilities.

If there is anything that open source does not have it may be a motive for illegal business practices such as those practiced by Microsoft.  Open source by its very licenses is inclusive of just about anyone who wants to participate and contribute. And that is true even for the BSD style licenses which seems to be the only open source licenses that Microsoft wants to suggest others use.  Of course,  much of their own work may be offered in other licenses more along the likes of what SUN sometimes suggests is appropriate.  Of course, SUN Microsystems does use more than one open source license.

Open source does have a profit motive if that is all you want.  It may take a different form.  But, it is much more inclusive and cumulative that closed source.  Closed source by its very nature precludes everyone from almost any form of participation other than paying money.  And no one is interested in doing that unless they have no alternative.  Open source even includes customers who might actually be providing a source of revenue for others to count on.  But even they are welcomed into the scratch party.

Sept 2, 2006 - Saturday

7:01 AM PDT - India State to Dump Windows for Linux (WashingtonPost.com)

I think there is more to this than first meets the eye.

Whatever the reason this state in India may have to switch to Linux, the very real benefit that their educational system will realize is that Linux is open source. And that means the technology is open to its students as well.

There is very real possibility that US students will quickly become disadvantaged if the US educational system does not also switch to Linux and open source. There is no question that having the technology open to users (students or not) provides them a very real advantage.  And governments around the world (including those in the US) need to fully consider the impact that open source can have on the student population.

Certainly not all students are interested in gaining direct access to source code.  But, any governmental entity that desires to develop a better local economy should seriously consider making sure that all students do have complete access to this kind of technology.

Microsoft (and all proprietary products for that matter) act against the very interests of its own customers.

Some day in the not too distant future, the US may be determined to have lost its lead on technology issues simply because governments and educational institutions failed to act in the best interest of their own students and citizens.

Sept 1, 2006 - Friday

12:33 AM PDT - Debating Open-Source Software at the U.N. (Pogue's Posts - NYTimes)

Why bother linking to this blog entry?  Certainly the readers here already know most of what this article speaks of.

But, it is interesting.  After all, it is before the UN. And many (if not all) members of the UN have a lot to gain from what is being "debated".

Actually it is not much of a debate.  A Microsoft spokesperson did speak a bit but did not say anything of value at all.  Claiming that Microsoft has learned from the open source movement and that there is room in the industry for open and proprietary software is hardly a point worth making.  Unless, of course, you are advising Microsoft stock holders that are getting skittish.

But if you are looking for something of value to UN members, it comes from open source and not from proprietary software (i.e. Microsoft). 

Seriously, though, many countries (or departments within them) are already making the switch to open-source software. They save money up front because the software doesn’t cost anything, but there are other motivations, like security (they can inspect the source code) and, in some countries, the hope of generating jobs for local programmers and administrators.

Now, that is something members of the UN can take back home. And gain substantial benefit from as well.  All Microsoft offers is a high priced bill that someone is going to have to pay over and over again.

Of course, readers of this blawq already know that.

The comment from Richard Stallman did keep the debate spiced up a bit.  "You are a deceptive person!", he tells the Microsoft rep.  And, of course, Richard is right. Microsoft uses deception and misrepresentation all of the time when speaking in public. It is called fraud when it is intended to get your money.

Daily Wrap and Flow - 70 (May 1, 2006 - Aug 31, 2006)

Daily Wrap and Flow - 69 (Jan 10, 2006 - Apr 30, 2006)

Daily Wrap and Flow - 68 (Jun 30, 2005 - Jan 9, 2006)

Daily Wrap and Flow - 67 (Jan 1, 2005 - Jun 30, 2005)

Daily Wrap and Flow - 66 (August 12, 2004 - December 31, 2004)

Daily Wrap and Flow - 65 (June 18, 2004 - August 11, 2004)

Daily Wrap and Flow - 64 (May 20, 2004 - June 17, 2004)

Daily Wrap and Flow - 63 (Apr 13, 2004 - May 19, 2004)

Daily Wrap and Flow - 62 (Feb 22 - Apr 12, 2004)

Daily Wrap and Flow - 61 (Mostly SCO Mar 1 0 Feb 21)

Daily Wrap and Flow - 60 (Mostly SCO Feb 1 - Feb 29, 2004)

Daily Wrap and Flow - 59 (Mostly SCO Dec 23 - Jan 31, 2004)

Daily Wrap and Flow - 58 (Mostly SCO Nov 14, 2003 to Dec 22, 2003)
Daily Wrap and Flow - 57 (Mostly SCO Sep 1 - Nov 13, 2003)
Daily Wrap and Flow - 56 (SCO, Aug 1 - Aug 30, 2003)

Daily Wrap and Flow - 55

Daily Wrap and Flow - 54

Daily Wrap and Flow - 53
Home