By Rob Enderle  |  Posted 2004-03-05 Print this article Print

IBM executive error: Linux and IBM legal likely out of decision loop If IBM knew that SCO owned the rights to Unix, even if those rights were unclear, IBM policy would have required that the company seek SCOs approval before releasing any of the related code to a third party, such as the Linux community. Certainly IBM would do this for large partners such as Microsoft and for large enemies such as Oracle. Why not then for a small, ex-partner such as SCO? The fact that IBM did not approach SCO prior to its action violated SCOs ownership rights just as they would have violated IBMs rights had the two companies positions been reversed.
I have worked for and with IBMs legal department for extended periods of time and know the group to be extraordinarily conservative. For instance, in the recent IBM laptop TV ad featuring the unique Thinkpad drop technology, legal intervened and defanged the effort.
IBM legal ordered the last 20 seconds removed for fear that Dell might take offense. During the removed video, the laptop owner returns, looking for his recently dropped laptop, and says, "Hey, dude, wheres my laptop?" Legal presevered even though that last 20 seconds would have made the difference between a good ad and an award-winning one. Dells potential recourse, given that the company had distanced itself from "the Dude" some time ago, would probably have been trivial compared to the potential benefit to IBM. But back to Linux. The open-source community has asked on multiple occasions for OS/2 source to be released to them, as has the OS/2 community. IBM has refused, saying that it doesnt own all of the code, apparently in anticipation of the litigation that might result with Microsoft. Granted, Microsoft represents much more of a risk than SCO. The company is much larger and more powerful. But IBM should know as much about who owns what in OS/2 as it does with AIX. Also, power shouldnt be the key factor in determining whether any firms property rights are protected—including IBMs own. If IBMs legal department wouldnt have accepted even a minor "Dell Dude" risk, how did this one get approved? Particularly given that this precedent could potentially reduce IBMs own intellectual property rights? It appears to me that a serious mistake was made. If SCO was damaged by that mistake, which seems apparent, the company should be made whole by IBM and its agents. That rationale solidly supports the argument that SCO should prevail. SCOs actions not dissimilar to IBMs own Once SCO was made aware of the exposure, the company acted in a similar fashion to how IBM has historically responded when faced with a similar problem. IBM has protected its property portfolio aggressively against domestic firms like Digital and foreign firms like Hitachi and Fujitsu. SCO similarly initiated legal action against the firm that violated its property rights. SCO did, however, have to develop a unique strategy due to the unique nature of the Linux license and community. This uniqueness allowed IBM to position the Linux community against SCO and distance itself somewhat from the less-agreeable parts of the war and, hopefully, conceal the connection between the IBM decision maker and the resulting problem. These moves were incredibly well-orchestrated and apparently included donated equipment for sites like Groklaw. This unprecedented effort by IBM supports the position that IBM actually knows it misacted and is at extreme risk. No other explanation fits this massive and unique effort to destroy a vastly smaller firm. Next Page: IBM compounds the problem.

Rob Enderle Rob Enderle Enderle Group 389 Photinia Lane San Jose, CA 95127

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