March 11, 2004 2:34 PM PST

Investment firm confirms Microsoft link to SCO

Investment company BayStar Capital has confirmed ties between two Linux foes, saying Thursday that a Microsoft referral led to $50 million in BayStar funding for the SCO Group.

"Yes, Microsoft did introduce BayStar to SCO," a BayStar representative said


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SCO versus
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Thursday, declining to share further details and repeating the firm's earlier position that Microsoft did not actually invest money in the deal.

Word of the Microsoft matchmaking surfaced last week when open-source advocate Eric Raymond published a leaked memo about Microsoft's help in the BayStar investment. SCO Group confirmed the authenticity of the memo but said its author, S2 Strategic Consulting's Mike Anderer, misunderstood the situation. Open-source fans leaped on the memo as evidence that Microsoft is aiding SCO's attack on Linux.

Linux threatens Microsoft's business--chiefly in hampering the growth of Windows on higher-end computers called servers, but also in Microsoft's desktop computing stronghold and in "embedded" computing devices such as electronic ticket dispensers, where Microsoft is trying to expand.

SCO argues that the Linux operating system infringes on its Unix intellectual property, and the company says businesses should pay to use Linux, a claim that advocates of the open-source


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OS vehemently deny. To back up its demands, SCO has hired a high-profile attorney, David Boies, and is suing AutoZone, DaimlerChrysler, Novell and IBM and earlier had prepared a suit against Bank of America as well.

Microsoft's referral doesn't reflect well on the software giant, said Illuminata analyst Gordon Haff.

"There's no smoking gun yet showing an orchestrated Microsoft executive-level pulling of SCO's puppet strings. What there is, however, is rather unseemly involvement by Microsoft around the periphery of SCO's funding," Haff said. "Given that Microsoft, on the one hand, is a convicted monopolist and that, on the other, SCO's financial dealings and actions look increasingly shady, Microsoft should certainly be worried about even a little bit of SCO's stench rubbing off."

A Microsoft representative on Thursday repeated the company's assertions from last week that "Microsoft has no direct or indirect financial relationship with BayStar." The representative declined to comment on why the referral took place or whether the company was looking into the matter.

SCO spokesman Blake Stowell declined to comment.


Flashback
News.com's related coverage of
SCO?s claims against Linux

SCO sues Big Blue
over Unix, Linux
(March 6, 2003)

SCO: Unix code
copied into Linux
(May 1, 2003)

SCO targets
Linux customers
(May 14, 2003)

Torvalds: What,
me worry?
(July 8, 2003)

Red Hat files
suit against SCO
(Aug. 4, 2003)

SCO sets Linux
licensing prices
(Aug. 5, 2003)

SCO attacks open-source
foundation
(Oct. 28, 2004)

Novell offers legal
protection for Linux
(Jan. 13, 2004)

SCO sues Novell
over copyright claims
(Jan. 20, 2004)

SCO suits target
two big Linux users
(March 3, 2004)

Court orders SCO
to show more code
(March 3, 2004)

Document shows SCO
prepped lawsuit
against BofA
(March 4, 2004)


SCO's legal actions are expensive. In its most recent quarter, the company spent $3.4 million in its legal actions and other aspects of its SCOsource initiative to profit from Linux use.

In May 2003, SCO said it didn't need any more funding, but in October, BayStar made the $50 million investment--$30 million of which came from the Royal Bank of Canada, which BayStar said has participated in several of its investments. In addition, Microsoft has paid SCO millions of dollars in a Unix licensing deal announced in May.

SCO's actions have flown in the face of the enthusiastic embrace of Linux by just about every major computing company besides Microsoft. Strong Linux allies include Intel, Computer Associates, SAP, Hewlett-Packard, Dell, Oracle, IBM, BMC and Motorola. And SCO's actions haven't stopped Linux's growth: In the fourth quarter of 2003, Linux server sales grew 63 percent to $960 million and unit shipments increased 52 percent to 250,000, according to market research firm IDC.

Open-source advocates are not the only ones suspicious of the BayStar deal. In its legal fight with SCO, IBM subpoenaed BayStar. Big Blue declined to comment on whether it plans to send new subpoenas to Microsoft.

Helping SCO find funding may in fact advance Microsoft goals that are anticompetitive, but it isn't necessarily a basis for a lawsuit under the Sherman Antitrust Act, said Andy Gavil, an antitrust expert at the Howard University School of Law. The reason: Filing lawsuits is protected under the First Amendment.

"There are many examples of firms funding somebody else to sue their rivals. Sure, their underlying goals are anticompetitive, but they're exercising First Amendment rights in filing lawsuits," Gavil said. "Even if the goal is to squelch competition, as it frequently is in patent and copyright cases, it can't be a violation of the Sherman Act if all you're doing is exercising your valid right to initiate litigation."

Boies has plenty of experience in antitrust litigation. He represented IBM when the U.S. Justice Department alleged Big Blue violated antitrust law, then he led the department's later case against Microsoft. (When representing IBM, Boies worked for Cravath Swaine & Moore, which now is defending IBM in the SCO case.)

Microsoft's actions also aren't likely to run afoul of the Justice Department settlement, said Richard Donovan, an antitrust partner with law firm Kelley Drye & Warren.

"The Microsoft settlement with the DOJ does not cover something like this. It dealt with commitments about interoperability and dealings with OEMs," Donovan said, referring to original equipment manufacturers, a term for computer makers. "There was no broad provision that said (Microsoft) shouldn't do anything else to harm other operating system owners or providers."

6 comments

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I am so Suprised
That Microsoft would spend money to try and squash Linux. Who would ever have guessed this.
Posted by (1 comment )
Reply Link Flag
::sarcasm detector explodes::
Britain's MI2 also reports that due to an increase in
attacks against *nix servers that M$ comes in 2nd for
security [conspiracy theory] now who would have the
resources to do that? [/ct]
(BSD came in first for security BTW)



(Yeah, what the OS Apple hawks is built on)
Posted by woj (2 comments )
Link Flag
try and squash Linux
<a class="jive-link-external" href="http://myweb.yahoo.com/myweb?ei=UTF-8&#38;friendid=z1HluB4R8Zd7TqmQd99StA--&#38;dg=0&#38;tag=imported+rss&#38;b=181" target="_newWindow">http://myweb.yahoo.com/myweb?ei=UTF-8&#38;friendid=z1HluB4R8Zd7TqmQd99StA--&#38;dg=0&#38;tag=imported+rss&#38;b=181</a>
Posted by Johni Depp (10 comments )
Link Flag
Microsoft and its methodology
I submitted feedback to a CNET reporter a short while ago and he said that if my notions were of any merit, we would have to assume Microsoft was inherently evil in its tactics. Agreed. The more I read in the technology news, the more it appears that such an assumption may very well be valid. With the disclosure of the fact that Microsoft was sending free Office apps to federal employees and now this current revalation, the idea of less than ethical practices by Microsoft seems pretty much confirmed. It scares me to think we have placed so much power in the hands of an entity who obviously has no problem with unethical practices. You doubt the power? If every Windows based computer were to stop functioning today, the world economy would crash. Makes me wonder what type of code may be hidden in the Windows operating system. With the incorporation of UPnP into the IT world, Windows now has the ability to control every IT system which includes an XP desktop operating system. In effect giving total control to Microsoft. I guess this does not bother anyone else but it makes me wonder how long it will be before every facet of IT is being controlled by a company whose practices are coming to light as covert, self serving and total control oriented. Does no one else see this as an issue?
Posted by bjbrock (98 comments )
Reply Link Flag
yup
The problem is that most people don't see it at all (or
refuse to)
also, (IIRC) guess who paid for Rumsfeld's campaign?

(correct me if I'm wrong)
Posted by woj (2 comments )
Link Flag
 

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