By silicon.com, 16 December 2003 16:40
NEWS When the SCO Group finally lays its cards on the table in its upcoming lawsuit against IBM, the open source community won't be given the opportunity to see them.
IBM last week successfully persuaded the judge presiding over the case to give SCO 30 days to reveal the code that forms the basis for its $3bn lawsuit against Big Blue for alleged copyright infringements. The judge originally placed no restrictions on public disclosure of the disputed code and it's understood IBM's filing insisted that the code be revealed publicly.
SCO has brought forward allegations that IBM illegally included its Unix System V code in freely distributed versions of Linux. On the strength of those allegations, SCO has made further claims against commercial users of Linux kernel 2.4.x and later for license fees.
SCO has violently opposed public disclosure of the code at the heart of the dispute, claiming that doing so would damage its ability to leverage its intellectual property in future.
"We can't just open this up to the public. The minute we open it up we have in fact opened it up to the public and we can't restrict it in the future from a proprietary standpoint," said SCO CEO Darl McBride at conference in August this year.
However, SCO public relations director Blake Stowell today said that the company had secured permission to present the code to a closed court.
"In other words, SCO will present this evidence to the jury, the judge and to the defendant [IBM], but it will remain confidential. No one in the public will get to see this code," said Stowell.
It's the first clear sign that the open source community, which has long been frustrated with SCO's secrecy over the code, will never get a chance to see the code nipping at the heart of its development ethos.
SCO has to date only allowed individuals to view the code subject to a non-disclosure agreement (NDA). The NDA has the effect of restricting the release of information that may allow the code to be removed from distributions of Linux.
The situation is frustrating for open source proponents, who believe that SCO has calculated its license claims to extract profit from the legal Catch-22 presented by the situation.
While the situation denies commercial Linux users and the open source community the opportunity to free the operating system from the legal encumbrance brought on by SCO's claims, those facing license demands are being forced to judge the quality of its claims before the court has had the opportunity to test them.
SCO characterises the licenses as a source of "immunity" from future intellectual property claims.
Andrew Colley writes for ZDNet Australia
Comments
There are 14 comments. Join the discussion
1. Bob Down
"When the SCO Group finally lays its cards on the table in its upcoming lawsuit against IBM, the open source community won't be given the opportunity to see them" This is far too sweeping a statement. The court will decide on an item by item basis, with input from IBM, what can be made public. Nothing that is alleged to be in Linux can be kept hidden, as it is already open to public scrutiny.
2. Sanjeev Sharma
Why Stowell talks about a jury is a mystery since many watchers believe this case will be thrown out soon.
Many of those who saw SCO Group's NDA show have recanted their earlier statements of "SCO looks like it has a case".
Didio, for example, went from saying "SCO has a strong case" at that time, to more recently saying "SCO has a right to bring a lawsuit."
Similarly, Gartner's Weiss previously wrote "it will not hurt to call SCO Group and talk about your infrastructure" to now writing "do not talk to SCOG. Do not let SCOG know about your Linux deployments unless they show up with a search warrant or court order".
Aside from talking about a jury,
Stowell's comments are completely false.
All code that is already public (all code in Linux) that SCO submits under the existing protective order can be made public.
The only code that SCO Group will be able keep secret is code that has not already been made public, if SCO Group presents any such.
3. Nathan Kelley
Funny how all the facts of these stories are straight from the horses ass i mean mouth i mean SCO...
I'm assuming the person that RESEARCHED this article is the same person that wrote it... aparently nobody... (by ???)
Just to let the author know... IBM has the ability to contest anything that SCO marks as confidential... and it's up to SCO to prove that it should be kept confidential... SCO hasn't done a very good job of proving things lately now have they?
4. anonymous
They've posted it already with their own product. Further, their (original) claim is that it's *already* been made public by IBM.
They're ducking, b/c they know if IBM gets this thrown out, they'll have to sue someone else and threaten someone else's customers.
5. Marty Fried
Why are they afraid for someone to see it? If it's in the public Linux sources, then it's no secret. It must be that they don't want to give people a chance to stop the infringement, which seems like something they should do before suing. Or is it that they're afraid someone will see the code, and recognize it as something that didn't come from SCO?
6. Norman Madden
The SCO group has (again) mislead you.
The protective order is in place for discovery only. When the court meets on Jan 9 2003, the rest of discovery will be decided ONLY if SCO has Linux code that can be proven to belong to SCO.
The Linux kernel code modules history can be traced to each kernel developer and is public information. IBM can easily find who wrote what section, no matter what SCO can dream up. If SCO cannot find a VALID infringment to show the court, criminal procedings are possible against all SCO execs for securities fraud.
7. anonymous
The whole case sounds like a pump-and-dump scheme intended to temporarily raise SCO's stock price so the insiders could dump their shares (which they did). Why are they continuing with the charade? Probably to make it more plausible, not because they think they actually have any chance of winning.
8. Chris Kirby
I hope this is a pump and dump scheme. The only one's hurt by that will be SCO and their investors. This is also a good wake up call for the open source community. Software written in the future will be better, thanks to SCO's stupidity.
9. anonymous
Take it off,take it all off...baby.
10. AMUSED
If you love your code...set it free.
11. anonymous
when do they ever learn?, when do they ever learn?
12. anonymous
when do they ever learn?, when do they ever learn? I have been running Linux Kernel for almoast 3 years now and never got any virus on my desktop on continius
connection on the Internet.
13. Thomas Frayne
Right, Bob Down. The reason the court hearing must be closed is that SCO has designated certain items as confidential. The Protective Order specifies that IBM can challenge any such item, which must then be kept confidential until the judge rules whether SCO has sufficient reason to keep it secret. SCO has the burden of proving that it has sufficient reason to keep each item secret.
14. Craig Golby
Hang on a minute, SCO dont want to show the public the code that they say is theirs and is included in Linux.
Linux being an open source Operating System, so all the code that SCO is claiming is there, is already publicly available, just not identified as theirs.
How ridiculous is that. Surely if the public knew which elements were the issue, they could be re-written and SCO's problems are solved.