SCO keeps disputed code secret

ZDNet UK ^ | 16 December 2003 | Andrew Colley

[ShadowAce]

The code at the heart of SCO's legal action against IBM will be revealed only in a closed court

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 (£1.72bn) 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 chief executive Darl McBride at conference in August this year.

However, SCO public relations director Blake Stowell said this week 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, 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 licence 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 licence demands are being forced to judge the quality of its claims before the court has had the opportunity to test them.

SCO characterises the licences as a source of "immunity" from future intellectual property claims.

[ShadowAce]

Tech Ping

[Salo]

The have a court ruling on this? The code that IBM released publicly is a trade secret and no one can see it except in a closed court?

[ShadowAce]

The have a court ruling on this?

I don't know. This is the first I had heard about it being this way, and it caught me by surprise.

I was hoping some other FReepers had heard something and could clarify it.

[taxcontrol]

"SCO public relations director Blake Stowell said this week that the company had secured permission to present the code to a closed court"

Sorry, I don't trust anything from SCO's PR folks. I would need to have a court ruling cited before I believe anything these people say.

[Mike Fieschko]

The have a court ruling on this?

Groklaw has the protective order here, along with comments. You can make your own comments.

Linux Today references the Groklaw item, and you can comment on the Groklaw item at the Linux Today site here.

[zeugma]

I'd have to concur with your assesment on this. If SCO was going to be allowed to present the code in closed court, it would be all over groklaw by now. Especially, as the quoted person indicates they'd secured this ruling a week ago.

[cc2k]

The protective order has been on Groklaw since Saturday, December 13 (see link in post #6 on this thread), though the order itself is dated December 16, 2003.

I'm not sure how this will play out. There is a provision for parties to challenge the designation of information as "confidential."

First, I think IBM will prevail if they want to publicly release any code that IBM holds valid copyrights to. I don't see any way that a judge would step in to stop that. To have any shot at stopping that, The SCO Group would have to challenge the copyrights, and I think they have already admitted that most (if not all) of IBM's copyrights are valid. Although they keep threatening to bring some kind of copyright issues into this, I think that involves copyrights held by The SCO Group, not challenging any of IBM's copyrights.

Also, I would think that IBM will challenge any attempt to designate source code directly from Linux source files as "confidential" because those files are available for download from many different places on the Internet. That hardly qualifies the information as "confidential." I doubt that The SCO Group will be able to convince a judge that anything publicly available on the Internet prior to their designation as "confidential" has any plausible claim of "confidentiality" to The SCO Group.

The SCO Group will be able to claim confidential status on any source code they present that comes from UNIX System V or UnixWare. That should certainly be allowed because The SCO Group owns that code and has proprietary interests in that code. That doesn't really matter too much because for the most part, nobody cares what code is in UNIX System V or UnixWare. The open source people really only want to know what Linux source code is involved.

It will be interesting to see how this plays out. This isn't anywhere near as big a victory as Blake Stowell presents it to be.

[Starwolf]

I'd have to concur with your assesment on this. If SCO was going to be allowed to present the code in closed court, it would be all over groklaw by now. Especially, as the quoted person indicates they'd secured this ruling a week ago.

A protective order is normal in these kinds of case, and IBM agreed to it.  What they did not agree to was to accept all of SCO's claim of what is propritary and what is not.  If something is indeed open source SO can not put it under seal.  Furthermore, IBM and Redhat will want the help and support of the open source community to disprove the SCO claims. 

This should be an interesting one to watch.

 

[Starwolf]

It will be interesting to see how this plays out. This isn't anywhere near as big a victory as Blake Stowell presents it to be.

I see a lot of  parallels between SCO and the old regime in Iraq.  Blake Stowell really reminds me of Baghdad Bob

[Nick Danger]

This is a manufactured news story, carried by the always shillful ZDNet, in which SCO tries to sell the bogus proposition that it has won some victory in the matter of keeping its stuff secret.

It's the first clear sign that the open-source community, which has long been frustrated with SCO's secrecy, will never get a chance to see the code...

No it isn't. It is merely the latest in a long series of signs that the reporters covering this story are sitting at the feet of the SCO press flak and writing down everything he says, instead of doing even simple things to find out what's going on.

There is, in the public record, a "Stipulated Protective Order," written by IBM, not SCO, and stipulated to by SCO's attorneys, keeping all this stuff confidential. That order was filed with the court on September 16th, and has been sitting right out in the open on various web sites since.

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.

Both of those statements are false. That is the quality of the reporting around this news story, particularly reporting by ZDNet. The hearing transcript, also available publicly, has it going down this way:

Let me ask counsel first, is there a protective order in place?

MR. MARRIOTT: There is a protective order.

MR. MCBRIDE: Yes, Your Honor.

THE COURT: All right, that answers that question then. All right, given that as my intended plan today...

The judge did not "originally place no restrictions," the judge made sure there was a protective order in place before even making the ruling. Nor did IBM's filing "insist" that the code be revealed publicly... IBM authored and proposed the protective order in the first place.

A BS story, made up of whole cloth by SCO's professional liars, and fed to us by their helpful friends at ZDNet.

The Stipulated Protective Order is here (pdf file).

The hearing transcript is here. (also pdf)

The bogus news story is all over the place by now.

[HamiltonJay]

THis code will be public faster than a New York minute... guaranteed, no matter what the judge rules.

[Salo]

Has it stopped the stock slide? Everything I am reading basically says "only SCO is saying this," so it may be a deliberate misinterpretation of a standing order that looks good to investors, but means nothing.

[Nick Danger]

Has it stopped the stock slide?

I can't see the stock sliding, or going much over $16.50, no matter what happens. It won't go down because 90% of it is held by insider and VC firms who don't want to have to recognize a loss on their income statements yet (and who have enough money to sop up any trades made by "little guys").

It won't go above $16.50 or so because $16.75 is BayStar's conversion price; at that price 3 million new shares appear out of the ether, and that will drive the price back down.

[Liberal Classic]

Good post, as always.

[adam_az]

ping

how do you like your crow prepared?

[Bush2000]

The have a court ruling on this? The code that IBM released publicly is a trade secret and no one can see it except in a closed court?

Duh. I've been telling you guys all along that you weren't going to get to see the code (just a closed court). This should come as no surprise.

[Bush2000]

how do you like your crow prepared?

Still smarting from Apple's LDAP security fiasco, troll?

[adam_az]

Why would I be "smarting"?

I *do* IT Security research for a living. I've probably forgotten more about the subject than you'll ever know.