Getting a glimpse at SCO's evidence

LAS VEGAS--When SCO Group first filed its lawsuit against IBM in March, critics characterized the move as the last gasp of an ailing company hoping to strike a series of lucrative licensing deals.

Since then the company has come out swinging even harder, bashing its detractors, standing by its allegations, and most recently, posting a profit that SCO said would allow it to continue its aggressive intellectual property fight.

At the SCO Forum here Monday, the company pulled out its latest weapon: lines and lines of disputed code that were allegedly copied from SCO's Unix into IBM's version of Linux. The company claims that IBM illegally copied Unix code into its version of Linux, and it's warning Linux customers that they may be violating copyright by using the operating system without paying SCO. It's also recently announced a new licensing plan that would require Linux customers to pay between $199 and $699 per computer.

In a quiet conference room tucked into the conference center at the MGM Grand, SCO offered customers, partners and the merely curious the chance to view the code for themselves, as long as they signed a nondisclosure agreement.

Companies involved in litigation traditionally keep such information under wraps in order not to tip their legal hand, but SCO said it decided to display the code because its critics were charging that it didn't have a case.

"Given the nature of this case and that there may be a significant period of time before it's resolved and that people were clamoring to see it, we decided to show a few pieces of evidence," said Chris Sontag, senior vice president of the SCOsource unit, which is charged with protecting SCO's Unix-related intellectual property.

As of the end of the day on Monday, more than 150 people had seen the code presentation, which the company said includes a small portion of the infringing code it has found so far. Sontag said the company has uncovered more than a million lines of copied code in Linux, with the help of pattern recognition experts.

A compelling case?
According to those who viewed the code at SCO Forum, company representatives showed off several categories of code that allegedly infringed its copyrights, including some lines that appeared to be directly copied, some that were derivative works and some that were obfuscated, such as code from which legal disclaimers had been removed. (This reporter declined to sign the nondisclosure agreement required to attend the special sessions where the companies showed off a special side-by-side comparison of the code, opting instead to gather reactions from people who saw the presentation.)

After viewing the code, Don Price, general manager of Price Data Systems, said he was surprised at the volume that was allegedly copied. "It's compelling," he said. "Some people were either extremely sloppy, or copied and thought no one would go after them."

Neil Abraham, with SCO reseller Kerridge Computer, said SCO made the right decision to pursue IBM. "I think they've got a very firm case," he said, after looking at the code. "It's not just one line. It's huge chunks."

Bob Ungetti, of Raven Technologies, who was milling about waiting to get into a room where the code was being shown off, said he wanted to see the code because his customers have been asking him about the suit. "I want to see the code myself just to substantiate the claims SCO is making, so when I talk to my customers about the credibility of the lawsuit, I can say I saw it for myself," said Ungetti, whose company is a reseller for SCO. "If they're interested in using Linux, they're concerned they may be adversely affected; my SCO customers are concerned that if the company loses the lawsuit, it may be out of business."

Ungetti said a keynote address on Monday morning had already convinced him that SCO had a pretty solid case. During a speech, SCO representatives showed a few slides containing the allegedly infringing code, offering attendees a taste of what they could see if they signed the nondisclosure agreement.

"The spelling errors and comments (copied into the code) are the real kicker. To me, that's the nail in the coffin," Ungetti said.

Many attendees of the conference are longtime SCO fans, so convincing them that the company has a case by showing them the code probably wasn't too tough. However, at least one attendee was appalled by SCO's decision to sue IBM. The man, an exhibitor on the show floor who asked that his name not be used, said that SCO's hands aren't clean either, because the company has probably taken code from other sources and incorporated it into its products. "It looks to me like there's been a lot of cross-pollination" between Unix and Linux, said the attendee, who jokingly called SCO's legal saga "As the Stomach Turns."

Legal experts agreed that SCO faces a challenge of proving that it has the original rights to the code--a task that could prove especially daunting because of a special license popular among makers of free and open-source software known as the GNU Public License, or GPL. The GPL requires companies that incorporate code into their product to share their changes. In its response to SCO's legal filing, IBM claims that SCO can't assert claims to the disputed code because it was originally covered under the GPL.

"Even if there is literal copying, you'll have to say, 'What's the source of the code?'" said Stuart Meyer, a partner with Fenwick & West, who is not involved in the case.

SCO has denied that the disputed code is covered by the GPL. An attorney for the company said Monday that even if it were, federal copyright laws protecting the company's intellectual property would trump the free software license, an argument that could form the crux of the case should it go to trial.

South Park creators Trey Parker and Matt Stone are huge Star Wars fans. There have been several Chewbacca references on the show.
In the "Chef Aid" episode, Chef is accused of trying to steal the song "Stinky Britches," which he really wrote many years ago. The record company takes Chef to court, and they hire Johnny Cochran to prosecute Chef. The whole town is wondering if he will use his famous "Chewbacca Defense," which he used during the O.J. Simpson trial. Here's a transcript:

Ladies and gentlemen of the supposed jury, I have one final thing I want you to consider: (pulling down a diagram of Chewie) this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. That does not make sense! (jury looks shocked)
Why would a Wookiee -- an eight foot tall Wookiee -- want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense!
But more importantly, you have to ask yourself: what does that have to do with this case? (calmly) Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!
Look at me, I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca. Does that make sense? Ladies and gentlemen, I am not making any sense. None of this makes sense.
And so you have to remember, when you're in that jury room deliberating and conjugating the Emancipation Proclamation... does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense.
If Chewbacca lives on Endor, you must acquit! The defense rests.

Later in that same episode, Cochran has a change of heart and defends Chef when Chef sues the record company. Again, he uses the Chewbacca Defense, although with some minor changes:

Ladies and gentlemen of this supposed jury, you must now decided whether to reverse the decision for my client Chef. I know he seems guilty, but ladies and gentlemen... (pulling down a diagram of Chewbacca) This is Chewbacca. Now think about that for one moment -- that does not make sense. Why am I talking about Chewbacca when a man's life is on the line? Why? I'll tell you why: I don't know.
It does not make sense. If Chewbacca does not make sense, you must acquit!
(pulling a monkey out of his pocket) Here, look at the monkey. Look at the silly monkey! (one of the juror's heads explodes)

Eventually, Chef wins the case and all is well.

Once SCO's business territory got invaded, and they found the alleged theft, they litigated.

It's getting better every minute. Apparently IDG (Infoworld, etc.) got ahold of another code snippet. So here's another piece of Double Secret code that SCO claims to own. Only this time, the original author recognized his own stuff:

Jay Schulist, a senior software engineer with Pleasanton, Calif.'s Bivio Networks says he wrote the 500 lines of code in 1997 as part of a volunteer project for the Stevens Point Area Catholic Schools in Wisconsin. "I used it for helping a local school district in my home town to connect their old Apple Macintosh machines to the Internet," he said.

        
 Schulist wrote the code, based on the publicly available specifications created by Lawrence Berkeley Labs, he said. He has never seen the AT&T source code, he added.

Really? Where? I don't see it anywhere in your post

There will be no re-runs of yesterday. You're not worth the time.

BTW, the PowerPoint file for the entire SCO presentation in Las Vegas is out there now.

Also, it turns out that there was a judicial ruling on the copyrights in the old AT&T v BSD case, in spite of the fact that the case was eventually settled. The ruling came in response to AT&T's request for a preliminary injunction halting distribution of BSD.

1. Copyright Infringement
 Plaintiff claims that BSDI has violated Plaintiff's copyright in the UNIX source code and, unless I enjoin further violations, BSDI's continuing violations will irreparably harm Plaintiff. The first factor to be considered is whether Plaintiff has a reasonable probability of prevailing on the merits of this claim. 

    
 - cut to the chase - 

    
I find that Plaintiff has failed to demonstrate a likelihood that it can successfully defend its copyright in 32V. Plaintiff's claims of copyright violations are not a basis for injunctive relief.

The 'finding' was of course preceded by detailed legal reasoning as to why the judge reached that decision, but basically AT&T screwed up procedurally and allowed 32V to sit out there in the public domain for six years before realizing their mistake. It was totally cut-and-dried. AT&T widely distributed the stuff with no copyright on it. This was back in the days (pre-1978) when you had to actually put © on your stuff, or it wasn't copyrighted. By law, 32V had become public domain. Since that's the basis of the BSD code, there's no relief for SCO down that path.

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