Court Forces SCO to Show Code Within 30 Days

[Lawrence E. Rosen]

Court Forces SCO To Show Code Within 30 Days
SCO claims it still intends to file copyright case


 9:19 PM EST Sat., Dec. 06, 2003

IBM won a significant legal victory on Friday after a Utah judge forced The
SCO Group to show within 30 days the Linux code that it claims infringes on
its Unix ownership rights.

The decision - cheered by commercial Linux companies and the open source
community - will shed light on the precise code IBM allegedly donated to
Linux in violation of its contract with SCO.

Open-source advocates and commercial Linux companies maintain that SCO has
no case against IBM or the GPL and are pleased that the court forced SCO's
hand.

"The idea that SCO owns enough of the intellectual property contained in and
represented by Linux is absolutely preposterous," said Ron Herardian CEO of
e-mail integrator Global System Services, based in Mountain View, Calif.

"Whatever code, if any, that SCO can legally prove it owns the rights to
will simply be expunged from Linux. SCO will never see a penny from these
suits. And any attempt to sue a company that is merely using Linux without
first winning a prerequisite IP case is frivolous."

Since the Unix company filed its multi-billion lawsuit against IBM last
March on that claim, opponents have decried SCO's refusal to show proof of
its charges and its claim as baseless.

Observers were further incensed when SCO sent warning letters to 1,500 Linux
customers last spring threatening legal action when the company hadn't yet
argued its case in a court of law or secured a ruling.

The IBM case isn't scheduled to begin until 2005.

Under pressure from open source backers, SCO agreed in June agreed to show a
portion of the allegedly infringing code to analysts and select individuals
under non-disclosure agreements (NDAs) but nothing conclusive came of that
experiment.

Then in August, IBM and Red Hat shot back. IBM filed a cross claim charging
SCO with violating the terms of the GPL and Red Hat filed a counterclaim
asking a Delaware court to toss out the case.

Red Hat said SCO's claims are unfounded and designed to create an atmosphere
of fear, uncertainty and doubt about Linux. Others claim that SCO is trying
to exploit the legal system to pump up its stock and licensing revenues
base. SCO denies those charges.

Two weeks ago, SCO announced it intends to expand litigation and will file a
copyright claim against a major Linux customer in the near future.

SCO CEO McBride sent out a letter Thursday night claiming the GPL violates
the U.S. constitution, U.S. Copyright Law and the Digital Millennium
Copyright Act. He claimed Red Hat and the Free Software Foundation with
trying to undermine U.S. copyright and patent law.

Intellectual property (IP) attorneys and observers in the open source
community contend it's been difficult to assess the merit of SCO's claims
without proof on the table. The court's decision, however, should clarify
the situation for programmers, partners, attorneys, vendors and customers,
observers expect.

"It's difficult to make any judgment," said George Weiss, a vice president
with the Gartner Group, noting he has heard conflicting accounts about how
the alleged code was contributed to the Linux kernel. "I split into two
parts. There are IP and copyright laws that have to be respected, but
whether SCO has a legitimate case has to be determined by the court."

One IP attorney says SCO's charges against IBM and its threatened copyright
lawsuit will be difficult to prove regardless of the release of code because
of the ambiguity of the original AT&T contract and the right of licensees to
product derivative works.

"One of the problems SCO has is that they're a successor to an operating
system that was always in a never ever world between proprietary and open
source," said Tom Carey, an IP attorney and partner in Bromberg & Sunstein,
Boston, who examined the contract IBM signed with SCO, and said the language
leaves much room for interpretation.

He claims the contract between IBM and SCO and its predecessor Novell gave
IBM a lot of "leeway" to develop competitive and arguably derivative code.

In spite of the ruling on Friday, SCO said it remains on track to file a
major copyright case against a Linux customer in the near future.

While declining comment on the specifics of McBride's letter of last
Thursday, Red Hat CEO quipped that SCO would have voluntarily showed the
code if its case were solid.

"It's more of the same, more of the same," Szulik wrote in an e-mail to CRN.
"I am sure the Founding Fathers would have produced the facts for all to see
by now."

Many in the open source world demand to see the code at issue.

"SCO still has produced no evidence of actual infringement," said Tim Dion,
a software engineering manager and Linux supporter who did not specify his
company's name. " I ask for only one thing. Mr McBride, just show us the
code. Stop playing games and show us the infringement."

In a month's time, the code in question will be a matter of public record.

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