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Linux.SYS-CON.com's Brian Ferguson Makes the Headlines at Forbes

Linux.SYS-CON.com's Brian Ferguson Makes the Headlines at Forbes

Readers of Forbes.com were treated this week to an excellent summary of the current position in the SCO vs IBM legal saga that included prominent mention of Linux.SYS-CON.com advisory board member Brian Ferguson, author of the insightful legal analysis we published in Vol. 1 issue 2, the current issue: "SCO's IP Gamble".

The Forbes article recounts how IBM - frustrated by SCO's reluctance to produce proof of its allegations - began recently to issue subpoenas to investors and analysts who have supported SCO. At the end of last month, it subpoenaed Baystar Capital, Deutsche Bank, Renaissance Ventures and Yankee Group - companies that have either invested in SCO or published reports suggesting that SCO's claims against IBM could be legitimate.

The Forbes article then continues:

One legal expert says the subpoenas may be IBM's way to get at information that SCO will not provide. "If you're having trouble compelling discovery, you go to outside sources," says Brian Ferguson, an attorney at McDermott, Will & Emery, a Washington, D.C., law firm.

Ferguson, who is on the advisory board of [LinuxWorld] magazine and has published an article declaring SCO's case a long shot, points out that in its counter-claim IBM alleges SCO has unjustly enriched itself through the lawsuit.

Investors and analysts have participated, perhaps unwittingly, in that enrichment, Ferguson says. SCO shares, which traded at less than $1 before the suit was filed, now change hands at nearly $16 per share. Some insiders have sold shares.

"IBM needs to get answers from analysts about why they wrote positive reports and from Baystar about why they invested," Ferguson says.

In his own article, Ferguson writes:

Without its own patent claims, the deck is stacked against SCO, and if IBM and/or Red Hat succeeds on the merits, SCO's IP claims against others will be toothless. Nonetheless, there are very few certainties in litigation, as IBM and Red Hat well know. If SCO mounts enough of an attack to sustain the cases towards trial, the risks may be too great for IBM and Red Hat to continue, and settlement is possible. If that occurs, the rest of the industry best be prepared to open its checkbook. And while SCO may be the first to attack the open source community, history shows others will follow. As the popularity of Linux grows, the suppliers of Linux operating systems (i.e., those that generate revenue from Linux product sales) inevitably become a more inviting target for IP holders worldwide.

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SYS-CON's Linux News Desk gathers stories, analysis, and information from around the Linux world and synthesizes them into an easy to digest format for IT/IS managers and other business decision-makers.

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