Saturday, February 26, 2011

Sco v. IBM, what happens to a political case

The "save Amanda Knox" cause that has recently consumed this blog, is undergoing a shift.  Initially the core group standing behind Amanda Knox were people who knew her.  People who simply couldn't conceive of her being the sort of person Mignini described.  People who paid their own airfare to testify in her trial.   Then a small group of people examined the evidence and found it wanting.  So while there was publicity, it was mostly directed in the early days by Mignini towards villifying Amanda Knox and Raffaele Sollecito so as to generate false statements (see Amanda Knox and prosecutorial abuse for more on this).   As the cause is broadening out to a few thousand people, its beginning to look more like a small political movement. Fewer and fewer people involved knew Amanda or any of the main parties involved personally.

So what we have here is a structure: a core group of people involved in the formal legal case, surrounded by a web support group who are gathering "evidence" in parallel with the actual trial, surrounded by a broader political movement. There are lots of criminal cases with the broader political movement. There are lots of political cases with a web based investigation but no broad political support. This triple is rare. And the best analogy is a civil suit that occurred recently SCO v. IBM that I was involved with in much the same way as this case.  And the point of this post is to examine this earlier case for what is instructive about it.

SCO was a market leader in x86 (PC) based Unixes during the 1980s  and 90s, and arguably along with Microsoft one of the few companies that believed there was money in the operating system's business as opposed to operating systems being a lost liter for selling hardware.     As Linux came in they moved onto more of a legacy support role and eventually saw their value eroded, eventually being merging with a Unix company (see Caldera OpenLinux on wikipedia for more details).

The public controversy started when the SCO Group's CEO, Darl McBride, initiated a media campaign arguing that the Linux kernel contained "hundreds of lines" of code from SCO's version of UNIX, and that SCO would reveal the code to other companies under NDA in July.  The Linux development process is public, and the kernel team has always been aggressive in attempting to ensure compliance with copyright law.  The SCO code copyright violations, if they existed most likely were in the IPX module which had been funded by Caldera, the predecessor to the SCO group.  And so this media campaign led to public outrage by a small group of people who were involved with Linux.  But this outrage quickly moved onto the broader community of people involved in the Linux community.  In much the same way that Mignini's media leaks to British and Italian tabloids originally offended just Amanda's family and friends but later generated the public interest in Seattle regarding Amanda Knox.

With a high level of public interest the initial filing in their lawsuit against IBM was heavily scrutinized.  I was typical in noticing dozens of incorrect and false statement.    I caught a lot of statements about the history of SCO, which I had been a fan of during the early 1990s, which were false.    There were also provably false statements about the history of Linux.   So in the discussions on the case I started raising these points.  And this was nothing more than internet blather.  What was different in this case, than so many others was I wasn't alone.  Dozens of people were doing the same thing.  And very quickly a site, Groklaw, was set up which organized this counter information.  Playing much the same role as Injustice in Perugia and Friends of Amanda do for the Knox case.  A central collection of information about the case as if the broader public had a vote.

Its hard to give examples on a general purpose blog since: most of the readers don't know what an operating system is, Linux / SCO has to do with operating systems kernels and the debates about things like IPX have to do with kernel libraries.  So I'll pick an example, which while trite gives an example of how misleading and dishonest the entire filling was.  Point 75, reads (points are mine)
The name "Linux" is commonly understood in the computing industry to be a combination of the word "UNIX" (referring to the UNIX operating system) and the name "Linus." The name "Linus" was taken from the person who introduced Linux to the computing world, Linux Torvalds.
Which of course is false in a whole bunch of ways. The name of the original programmer was Linus Torvalds, not Linux Torvalds. His name for the system was Freax which was a combination of Free, Freak and X. The name "Linix" (not a typo) was Ari Lemmke's abbreviation of "Linus' Minix".  Ari ran the site where Linux was first uploaded and first distributed from.    Minix was a reference to Andrew S. Tanenbaum  Operating system he wrote as a companion to his standard text, Operating Systems: Design and Implementation (link is to the late 1980s version, current is here).

And these details are important in context.  The point of 75 was to argue that even the name Linux is evidence for their theory of the derivation of Linux  While in reality the origin of the name shows the opposite.  The reference to Minix shows that the early version of the code came from the educational / academic community and not the commercial community, product lines with the AT&T code.      As an aside, the name Linux was a failed attempt at unifying the pronunciation using Linus name. American's were pronouncing Linix (Linn-ks) rather than 'Lee-nuks' (Len-uxs) and since Linus pronounces his name 'Lee-nus' the assumption was Linux would be pronounced that way; however Americans pronounce Linus as 'lye-nus' and Lye-nuks was the natural connection which also wasn't right and just added to the confusion.

So again while that point may sound nitpicky, and it is, this is meant to be an example that doesn't require background of how wrong SCO was on its many many points.   And there were hundreds of these.  All like the Harry Potter book, the blood on the knife, the bloody footprints... evidence that simply didn't exist.  And just as guilters today in the Knox case encourage everyone to ignore the specific facts that virtually ever piece of evidence that is not irrelevant has been refuted, SCO's defenders encouraged the people hearing about these nonsensical claims to focus on the big picture.   But of course the big picture was just an amalgamation of innuendo.   But unlike in the Knox case the judiciary didn't feel it appropriate to create their own theories from SCO's claims, filling in the blanks with "it is possible and in fact probable".   Rather they focused on the evidence as presented by the plaintiff:

Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities.

The interest and controversy, fed by these sites continued to build.  Journalists covering these sorts of things, typically rewrite a press release throw in a line or two of their own and move on after a few hours.  For serious cases of course everything needs to be carefully fact checked, reputations can be made or lost based on how evidence was handled.  And journalists soon found that this case was not going to be treated the same way as a minor lawsuit.    The level of controversy and heat, was more like writing about the Israeli / Palestinian crisis or a major political case.  There were expected to check and double check every line they wrote.  Years later journalists faced criticism for what they had written in SCO v. IBM; and almost all who had done little more than regurgitate press releases had to write detailed apology / retractions admitting it, to maintain their credibility.

But journalists were not the only ones effected.  The legal system itself was substantially influenced.  They were people in IBM that originally been inclined to settle cheaply.  The PR campaign and the community reaction to the SCO PR campaign put those ideas to rest.  IBM knew the community reaction to anything short of total victory would be devastatingly negative publicity.  Conversely the ongoing case was a net positive in terms of marketing, IBM's got to be the good guys among a large chunk of their potential customer base all for the cost of a minor lawsuit, SCO's PR campaign backfired.  And again the analogy of Mignini's original vilification campaign leading to a dozen books and at least 3 movies works well in this analogy.

And as the case continued the people involved who were deposing themselves to assist IBM were not secondary players like myself but primaries.  For example the project manager who had negotiated parts of the project Monterey contract for SCO with IBM came forward to contradict SCO's claims about what their intent had been at the time.  The estate of John Lions, whom both sides knew had died of old age, came forward publicly to forward to contradict SCO's claims, and provide evidence to IBM about having gotten parts of Lions' Commentary on UNIX from AT&T that Lions hadn't.  IBM's lawyers had the effect of an infinite investigative budget.   Even SCO admitted how effective Groklaw was and tried to create a connection with IBM to put an end to their activities, which failed.

In terms of the Judges, most couldn't believe that this "BS lawsuit" was the case they were going to be famous for.  None had experienced this level of public scrutiny where every motion was discussed publicly and in detail.  It caused them to go more slowly and more carefully.  It is my hope that the publicity for the Knox case similarly effects the Italian judges.  The Italian judiciary is being attacked from the right within Italy, from the British with the EU it doesn't need to further alienate America where  Italy has consistently taken the position that justice must meet international standards and shouldn't be a one country affair, (see Italy the EU and the international standards of justice).

Finally business partners and contributors to the lawsuit like like Yarro, Microsoft and Sun were affected.   Negative PR for Linux had been a boon for Microsoft and Sun.  Positive PR for SCO had been a boon for Yarro.  But once this case became really hot everyone backed off.  Microsoft while seen as unavoidably hostile to Linux needed to avoid being truly detested the way SCO was.  SUN wanted credibility in the open source world.  Conversely people on the other side like Novell and IBM who had often been mixed earned a lot street cred by being on the side of the angels.  Perguia was shocked when Seattle rejected Perugia park.  Rocco Girlanda has a US reputation now, and contacts with average Americans.

While the Knox case is not nearly as big as the SCO v. IBM case, I do think its an instructive example.


Paul Baird said...

I'm assuming that you're viewing this from the USA perspective.

You need to also bear in mind a couple of points that are not relevant to the facts of the case, but which still nonetheless have a bearing.

This is a case within Italian and EU jusrisdiction, not USA jusrisdiction. You guys do not rule the world anymore. Whatever the rights or wrongs they need to be dealt with inside that framework. Bitching about it is just going to annoy people and alienate support from within the EU (is there any demographic breakdown of supporters for Amanda - betcha most if not all is US citizens).

The USA judicial system has also committed some howlers (yes, I know about tu quoque fallacy) - I could name quite a few off the top my head. That doesn't detract from the possibility that Amanda Knox's case has issues but it raise the charges of utter hypocrisy.

CD-Host said...

Hi Paul --

Actually I think this is country neutral. Italy has physical possession of Amanda Knox. They can make sure she get shanked in the shower and bleeds out today. The question is not one of what can Italy do, but rather what things look like in terms of their justice system.

I don't think there is much support for Amanda within the EU, we don't disagree there. On the other hand Italy gains zero from holding her. The questions related to the Italian justice system, both within Italy and within the EU are serious and do involve America.

The Amanda Knox case lowers support for the Italian justice system within the United States. It starting to have an effect with the EU because the irregularities and dangers of the system are being exposed through this case. That doesn't change the issue of physical possession one bit. Nick Berg prior to his beheading has a lengthy statement of charges read against him that he was evidentially found guilty of. The Italians don't need to prove they have the physical capacity to execute Amanda Knox, of course they do. What they need to do is prove that her imprisonment is a moral act, and that comes from America not Italy.

As for the USA justice system its a total disaster rightly attacked at home and abroad. It has elements that are fantastic, but terrible execution. And certainly many of the problems that Amanda faced are problems that people in the US face. This case is useful in that it exposes problems that are endemic throughout the criminal justice system. Some of the problems are unique to Italy. For example the fact that she didn't have a right to a speedy trial. Or that the there is not a proper distinction made between accessory and primary in a violent crime.

Shayden2010 said...

Dear Paul,

I have seen more than enough to say that people and the italian goverment is hiding the actual truth from amanda knox, thelied about her having a sexual deiase that not only was false but couldn't have been true, they abused her in a manner she had to lie about killing that girl because she was guilted into it and the police there believe in abusive ways on thier prisoners which is illegal in thirt country, but because they are police officers they think they can get away with it, they already thought she was gulity the momnet they saw her pictures cannot say she did it and the roommates, where were they when this happen??? they live in that very house and say they saw nothing wrong, what the hell?? I am no crimmal expert but thier are a lot of errors in the edience collected from the itlain police and their team, no has the proof she did it and the roommates statements make no sense, i bet the police made them lie so the story would help them believe amanda knox was guilty....she should have real experts evaluate her and not people who judge before seeing the real facts, amanda could have cut herself on the knife weeks before anything and this girl isnt guilty of her prove that she didnt do this!!!!

Vera Keil said...

I agree with what I understand to be your points, CD-Host. I fear for Amanda's safety in prison and disagree with villifying Italy or the police until she is OUT, but I hope her high profile may be her security.

Frank Sfarzo's recent posts on the case and the Italian judiciary are white-hot with fervor and facts.

I have no idea what will happen in the appeals, but just hope Hellman values his integrity and reputation in general more than his immediate career--his place in the system, in other words.