Groklaw's Jones Confident Amid SCO Deposition Summons

PERSPECTIVE - Calling her the "self-proclaimed operator of an internet website known as 'Groklaw,"' attorneys for UNIX vendor SCO Group filed a motion on Monday stating it is seeking to serve blogger Pamela Jones with a subpoena to be deposed in its intellectual property case against Linux vendor Novell. SCO also seeks to use the deposition content in its seemingly interminable case against IBM.

In its memorandum, SCO does not actually lay out a case for how Jones may have damaged the company directly, though it cites a multitude of press reports as "evidence" that the company hopes to prove is relevant, including some that allege a financial or material connection between Jones and IBM - albeit several steps removed.

One press report cited by SCO alleges Jones received as much as $50,000 from the Open Source Development Lab, which is associated with Novell and which receives some of its funding from IBM; and another was a recently published InformationWeek story stating that the University of North Carolina service that hosts Groklaw for free, also received funding from IBM. IBM since issued a statement saying it has no connection to Groklaw's editorial content.

Some of these allegations reported elsewhere, in my judgment, have either been without merit or tremendously flimsy, and not worthy of mention in BetaNews to this point.

Groklaw is a technology legal affairs blog, a majority of whose space over the years has been devoted to coverage of the SCO v. IBM and SCO v. Novell trials. Jones is a paralegal with experience in interpreting legal documents, and her site has presented nearly all public documents related to the case. However, the SCO memorandum alleges, time stamps on documents recently presented on Groklaw indicate its source for those documents must be IBM itself, and not the public record.

In Groklaw, Jones has presented interpretation and commentary, which has clearly sided against SCO over the years, in no uncertain terms. But as she has maintained in public as well as to me and her other colleagues, Groklaw is her own project, and she maintains the right not only to interpret public documents but to render her personal, non-binding opinion with regards to their content and their intent. The site also collects a substantial amount of commentary from other individuals, who may or may not have legal expertise but who certainly appear to know how to make their opinions heard.

The SCO memorandum of last Monday raises the question of whether an individual blogger has the right to influence public opinion in an important civil case. What the memo does not address - and perhaps cannot - is whether a sampling of public opinion is necessary for a judge to render a ruling or opinion in a civil case. Most judges would probably maintain that the interpretation of law is not a political matter, and thus would cast doubt as to whether a deposition from Jones, as SCO claims, "bears on this litigation."

At the same time, the memorandum also appears intended to cast suspicion as to Jones' identity, despite the question of whether her identity or opinion or the opinions of Groklaw's readers bears relevance to the outcome of this case. The memo appears to promise that Jones' deposition would be important and relevant, based only on the word of the press, upon whose own integrity the memo would simultaneously cast doubt unless it intends to suggest that certain blogs don't belong to the press at large while certain blogs do - the criteria for determination having yet to be presented, and perhaps being well beyond the purview of this case's judges to even consider.

SCO alleges it is having difficulty serving Jones with a subpoena, using press sources as leverage to cast doubt upon her very identity, as though "the press" is both a personal address and a professional affiliation, and as though it is the responsibility of the press to "cough up" her identity. Some might compare this tactic to the "guilt-by-association" witch hunts of the 1950s, though in a kind of dark-comic, melodramatic light.

Without stating so directly, the memo alleges Jones may have tried to use a personal vacation as a way to avoid being served with a subpoena, though on Groklaw yesterday, she maintains she actually didn't go anywhere during her time off, and could have been served easily at any time.

"Let me reiterate: No one came to serve me that I ever knew about," Jones writes. "SCO claims that I left on vacation to avoid service. That is false. When I took my health break from Groklaw, I didn't go away on a vacation. I just went to bed and went offline to rest. That made me *easier* to serve."

A bit of personal viewpoint, if I may: Throughout this case, a number of parties and even some individuals in the press, with the noteworthy exception of Pamela Jones, have tried to make this story about themselves. It's as if Groklaw managed to prove that one individual can indeed be influential, but they can't seem to re-create the formula to build a similar platform for themselves.

There's also perhaps a bit of envy on the part of some observers that a following of thousands can be assembled around an essentially anonymous writer who wishes to maintain her anonymity, and who has aptly demonstrated her legal right to do so.

The truth is that this case is only about individuals such as Jones parenthetically, and while this case has established one blog as a trusted source for news on this and other cases, Groklaw could not have risen to a position of prominence had it not provided some much-needed insight into this important question: To whom do ideas expressed as software truly belong?

In the end, despite what may be efforts to deflect the public's attention to focus instead on little sideshows, the final decision in this case will be about that central question. It may be fear as to the impact of the answer to that question on the way the principals conduct their business, that is compelling them to deflect judges' and the public's attention, at this late hour, to other matters that don't really affect the general public all that much, including the relative anonymity of one blogger and her right to render an opinion online.

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3:45 pm March 7, 2007 - I asked Pamela via e-mail what her plans were once the SCO case is finally over. She responded first, as far as Groklaw is concerned, it will continue as a software legal resource. She cited a Netcraft survey that places Groklaw as the #758 most visited site on the entire Web, which she says, "tells me that Groklaw has a life of its own now, independent of SCO coverage, so 'the end of SCO' won't be the end of Groklaw."

As for herself? "First, I'm going to find a beach and swim and swim and swim, and then float on my back a while, gazing up at the clouds and the blue sky, and listening to sea gulls call, until I can relax and am my happy, simple unstressed self once again."

[Full disclosure: Pamela Jones has provided commentary to BetaNews on other issues, and is considered a friend and colleague.]

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