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SCO Code to be Protected in Closed Court 493

An anonymous reader writes "SCO public relations director Blake Stowell today said that the company had secured permission to present the code alleged to have found its way into Linux to a closed court. Once again SCO is refusing to tell Linux users just what code they claim is infringing on their IP rights, while still threatening to sue corporations running Linux."
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SCO Code to be Protected in Closed Court

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  • by GnrlFajita ( 732246 ) <brad&thewillards,us> on Tuesday December 16, 2003 @11:51AM (#7735137) Homepage
    There is a discussion about this on Groklaw [] as well.

    The question, of course, is whether the claim is true or not -- it is coming from SCO, after all. There's a good chance it could be true, though, because a big part of SCO's claim is for trade secret violations -- which require the alleged secret to, well, remain secret (disclosure does not effect copyright, but it does trade secrets). It only makes sense for them to seek a protective order, and it does not really effect the case from the judge's and lawyers' standpoint. But that doesn't make it suck any less for the rest of us who want to see the code for ourselves.

    • by Svartalf ( 2997 ) on Tuesday December 16, 2003 @11:58AM (#7735230) Homepage
      ...published on the Internet by way of the alleged inclusions into Linux. It's no longer a Trade Secret and prior precedents say as much. I have trouble believing Blake Stowell's clams and I would have even more trouble with the court letting that one go down.
      • I have trouble believing Blake Stowell's clams...

        Then don't listen to the man's clams. What do mollusks know about jurisprudence anyway?
      • by ThosLives ( 686517 ) on Tuesday December 16, 2003 @12:47PM (#7735797) Journal
        I was just thinking about SCO's claim that they have "trade secrets" that they don't want to get out. There was a post later [] in this thread mentioning "what if some other guy came up with code that has the same functionality without stealing it?".

        It is my understanding that this is one risk of "trade secret". If someone develops something the same time as you, but independently ('course, there could be issues of determining independence), then you don't have any claim to the idea because you did not disclose it. This is one aspect of patents, actually: you are making some technology public, but the patent gives you exclusive rights for the patent term. You are trading public knowledge for exclusive use. If I develop some widget in my basement, and some guy on the other side of the country does the same and we both sell it without protecting the idea, we don't have any mechanism for protection.

        The fact that SCO is claiming "trade secret" could possibly be an advantage: "Hey folks, well their code was secret so we had to come up with our own way to do it, and we did. But since it was math, there was only really one way to do it, so it looks the same." (This you might be able to prove by giving 6 people some differential equations and having them solve it - my guess is they will all arrive at the same answer (if they know what they're doing, at any rate)).

        So, in summary, do "trade secrets" have any protection if they are not stolen? If I make a competing technology for one that is a "trade secret" that does the same thing but without copying the guts, is there any grounds on which the offended party may seek damanges? Is that not part of the risk of keeping an idea "secret"?

        • by goates ( 412876 ) on Tuesday December 16, 2003 @01:12PM (#7736029)
          According to the lawyer who gave a lecture about intellectual property rights, patents and trade secrets etc., trade secrets have no protection. If you can develop the formula for Coca Cola on your own, they can't stop you from selling it, as long as you don't infringe on their copyrights or trademarks. There is also a chance that someone could patent it before you do if they develop it around the same time, in which case you could be infringing on a patent if you can't prove you came up with the idea on your own.

          • by cpt kangarooski ( 3773 ) on Tuesday December 16, 2003 @01:40PM (#7736344) Homepage
            No, there is protection for trade secrets, just not how you think.

            Trade secret law really isn't about the protection of the secret, per se. It is a branch of unfair competition law. It's designed to prevent corporate espionage, because you can get in trouble not for discovering the secret, but for HOW you discover the secret.

            Reverse engineering or independent creation are fine.

            Sneaking in in the middle of the night and stealing the plans from the competitor is not.
          • by Monkelectric ( 546685 ) <> on Tuesday December 16, 2003 @01:41PM (#7736346)
            Yea theres a good reason to. The patent is a cookie given to an inventor to TELL US HOW THEIR INVENTION WORKS. They get protection for a length of time, and we get to know how it works. If a company wants a trade secret (doesn't want to tell anyone how their technology works) then they don't get that protection. That's the tradeoff.

            It's a good thing to -- we want knowledge to be as widely held as possible so science can advance.

        • IANAL (Score:5, Insightful)

          by khasim ( 1285 ) <> on Tuesday December 16, 2003 @01:17PM (#7736074)
          But I believe you are correct about trade secrets and parallel development.

          SCO might have a case IF they could show that SCO showed IBM the trade secrets SCO was using under contract and that IBM then released those to Linux.

          So, SCO has to identify the code they claim is a "trade secret". For some reason, SCO has been very, Very, VERY reluctant to do so in court.

          Then SCO has to show that there was a contract covering that code signed with IBM (or one of the companies that IBM now owns and that the contract was still binding when ownership changed) and that IBM had access to that code PRIOR to that code being added to Linux.

          IF (and that's a big IF) both of those items are met, then IBM needs to show that the person/team that submitted that code to Linux did not have access to the SCO code.

          Trade secrets have a problem in that it is up to the company with those secrets to protect them and take REASONABLE precautions against them leaking out.

          Now, if SCO shows the code and the contracts and IBM cannot show that the code was clean, IBM can still come back and say that since no one in the Linux kernel developers' community can IDENTIFY THE SCO CODE, the "trade secret" is still a secret.
          • by Theatetus ( 521747 ) * on Tuesday December 16, 2003 @02:16PM (#7736746) Journal
            SCO might have a case IF they could show that SCO showed IBM the trade secrets SCO was using under contract and that IBM then released those to Linux.

            Ah, another victim of SCO's dishonesty.

            Look back over the case that SCO filed against IBM. SCO is not claiming that IBM ripped off code SCO wrote or already owned.

            I want to say that again because it's the crux of SCO's lies: SCO is not claiming that IBM ripped off code that SCO wrote or already owned.

            What SCO is claiming is that code that IBM wrote for SCO was also included in Linux, allegedly contrary to IBM's license.

            Essentially, SCO is claiming IBM had a "no compete" clause somewhere in that license. I don't know if they did or not. Even if they did, I don't know if they contributed code to Linux in contravention of the clause.

            But please let's not let SCO distort the question of fact: they have never claimed that pre-existing code owned by SCO was added to Linux. They have claimed that code was simultaneously added to Linux and (I think; somebody correct me here) AIX in violation of IBM's license with SCO.

            • by khasim ( 1285 ) <> on Tuesday December 16, 2003 @02:49PM (#7737191)
              You are correct in what SCO has filed and that is all that matters at this point.

              It might have been a non-compete, or it might have been some other restriction.

              Until SCO identifies the code, we won't know what contracts, if any, cover that code.

              As for SCO's claims that pre-existing code was added to Linux, SCO did claim that in their NDA presentations.

              SCO has filed ONE lawsuit against IBM for contract violations. What those specific violations are will have to wait for the specific code to be identified so the specific provisions of those specific contracts covering that specific code can be specified. :)

              That is what the judge just ordered.

              But, SCO has made lots of public statements about copyrights, patents, trade secrets and implied other things under "Intellectual Property". That crap is what gets reported by all the "journalists" and "analysts" out there.

              I think it is good to have each of the possible scenarios discussed and what would happen under each of them.

              More importantly, we could look at past cases to see what the standards were and what the legal outcome was.
      • by Odin's Raven ( 145278 ) on Tuesday December 16, 2003 @01:25PM (#7736156)
        I have trouble believing Blake Stowell's clams...

        Tonight on BBC 4: Clamofibophobia -- are bivalve mollusks lying to you?

        As a public service to the /. community, let me review the relative truthfulness of various members of the animal kingdom.

        • Clams - Generally trustworthy, renowned for keeping their mouths shut. However the so-called Blake Stowell clam ("Musculius SCOlegalitus") can be deceiving, often posing as an oyster to trick its prey into thinking it contains a pearl.
        • Penguins - C'mon, it's cute. You can trust penguins.
        • Daemons - Technically not an animal, but also cute. You can trust daemons. (Warning: do not confuse daemons with demons. If it wants to rip your entrails out and place them on an altar, it's a demon. Run.)
        • Butterflies - Do not trust butterflies. Even minor changes in a butterfly's flight configuration can introduce world-wide climactic changes with destructive consequences. Butterflies have also been linked to the spread of numerous viruses.
    • by ArgumentBoy ( 669152 ) on Tuesday December 16, 2003 @12:01PM (#7735278)
      A crock. This reminds me of the only DUI case in US history whose records are sealed, as far as I know - Ted Kennedy's Chappaquiddick disaster. What could possibly be the point of sealing code that is already open & public - that is SCO's point, right? They're just prolonging the FUD as long as they can. When you're rich & have good lawyers, there's no pretense that the legal system works - instead, it's worked.
      • What could possibly be the point of sealing code that is already open & public - that is SCO's point, right?

        Maybe they're trying to make the Linux advocates look like fools.

        Seriously, I don't understand why we're biting. Maybe someone from IBM took SCO code and put it in Linux. It's not at all unreasonable to believe that.

    • by WindBourne ( 631190 ) on Tuesday December 16, 2003 @12:17PM (#7735478) Journal
      More likely that the judge gave permission for the code to be presented in a closed court, but can later be opened.
      I am guessing that SCO wants to refer to something else here so wants the closed court to hide whatever else they are up to.
      • by Zeinfeld ( 263942 ) on Tuesday December 16, 2003 @12:51PM (#7735850) Homepage
        More likely that the judge gave permission for the code to be presented in a closed court, but can later be opened. I am guessing that SCO wants to refer to something else here so wants the closed court to hide whatever else they are up to.

        Right think about it from the point of view of the court. A request to present evidence in closed court will almost always be granted - unless it appears completely frivolous. Publishing is irreversible, evidence presented in closed court can always be released later.

        Once SCO has stated with specificity the fragments of code that it claims are stolen IBM will get the chance to argue that they should be made public. They have a very strong claim here since the basis of SCO's claim is that the code has been stolen and included in Linux and is therefore public.

        IBM can very fairly claim that their ability to defend the case would be unfairly harmed by keeping the code fragments secret. There is no way they can approach the community to ask for information with a bearing on the case.

        There is also the issue of failure to mitigate damages. It is very clear that any allegedly infringing code will be replaced as soon as SCO states the code in question. I don't see how the court could order IBM not to use the evidence provided by SCO to end the alleged infringement. That would be illogical.

        I expect that once SCO has shown the code there will be a rulling to make some of the information available, at a minimum the corresponding Linux fragments that are alleged to infringe. The rulling will then be appealed to the apeals court which will kick it down promptly. 24 hours after the data is released there will be a new Linux distribution with the fragments eliminated.

        At that point SCO's potential damages will sink to a few tens of millions at best, most likely negligible. The SCO stock price will collapse and there wont be enough money to keep the case going. IBM then buy SCO at discount prices out of Chapter 11 to avoid further littigation from the next bucket shop to buy the rights. UNIXWare is made open sauce. Cheney is impeached for helping Haliburton's war profiteering, the Red Sox win the world series, pigs fly and Commander Taco fixes the slashdot code to warn editors of imminent dupes.

        • by molnarcs ( 675885 ) <> on Tuesday December 16, 2003 @01:36PM (#7736284) Homepage Journal
          " 24 hours after the data is released there will be a new Linux distribution with the fragments eliminated."

          Code shouldn't be necessarily removed, for2 reasons:
          1) It can turn out that whatever they show was coming from a common source (BSD) or was already public knowledge.
          2) Even if it turns out, that the code in Linux derives from SCO's SystemV code, we shouldn't abandon the issues with the GPL. Of course, they would plead ignorance, but I believe it would be difficult to convince the judge given their one time slogan of 'bringing unix and linux closer' - or something like that. Not to mention their LKP and already known contributions to the linux kernel.

          The difficult part of this decicion is that yes, you can clear out any code that SCO claims is infringing, but doing so, you acknowledge that there was merit to their claims, and you also acknowledge a weakness in the GPL. SCO used the work of thousands of developers when making money selling linux under the GPL. They should not get off that easily (oh, but we didn't know! what? didn't read the licence? didn't know what your employees were doing? didn't know what you were selling?)
          • by spiritraveller ( 641174 ) on Tuesday December 16, 2003 @03:32PM (#7737683)
            The difficult part of this decicion is that yes, you can clear out any code that SCO claims is infringing, but doing so, you acknowledge that there was merit to their claims. . .

            "Subsequent remedial measures" are not admissible as evidence of culpable conduct in any Federal court. Besides, if there is a question about whether code is legal, the most reasonable thing to do is to simply remove the code. It doesn't mean that you are admitting anything. It just means that you don't know and you are being smart.

            The decision whether to remove code should be made based on what is best for the users and developers.

            True, SCO should not get off that easy. Copyright law is strict. It doesn't matter if SCO didn't know... but that also applies to people running Linux. If there is infringing code in there, they could be liable even if they didn't know about it.

            Exposing millions of innocent people to potential litigation is not something that should be done merely for principle's sake... if you can prove the code came from BSD or elsewhere (or was donated by SCO), then by all means, prove it in court... but if you don't know, you go ahead and replace the code to minimize the damage.

    • Except that (Score:5, Insightful)

      by cgenman ( 325138 ) on Tuesday December 16, 2003 @12:18PM (#7735485) Homepage
      if the GPL is an amalgamation of individual copyrights collected together, then SCO's code needs to be delineated for the end users. If the GPL is an umbrella copyright, then all of the developers need to know what is infringing so that it can be removed.

      The secret is going to be out. Whether it happens now, when the accused is standing in court, or later when the judgement is handed down and something has to be done about the infringement, it is going to be out. The only way the secret could stay a secret is if the judge threw the bums out. Not a bad option, in my opinion.

      At this point, a well-timed "leak" is in order. Those silly IBM lawyers and their unsecured FTP servers.

      Hey... Isn't this what Freenet was made for?

    • by FreeUser ( 11483 ) on Tuesday December 16, 2003 @12:23PM (#7735538)
      groklaw has an excellent write up of this. To wit
      • No new motions have been made since SCO's defeat in the last hearing
      • No new hearings have been scheduled or held
      • No new orders have been issued by the court
      • The existing protective order was mutually drafted and agreed upon by IBM, the court, and SCO.
      • It protects trade secrets, but not "code" per se.
      • Showing that any code distributed by SCO as a part of GNU/Linux is not a trade secret is trivial to do, and we can expect IBM to do so quite quickly
      • Non-trade secrets have no such protection, and will be available in open court documents

      In other words, this is typical SCO FUD and misrepresentation of the facts, and in this case, facts that are already old and well known to those following the case. SCO has not won any victory here; quite the contrary. The alleged code (if it exists at all) will almost certainly be available after some very standard legal procedures.

      There is truly nothing to see here; zdnet got suckered by a SCO press release. Regrettable, as they should have known better by now, but aside from allowing Darl et. al. to defraud some day traders and invenstors for another few days, it really doesn't amount to anything at all.
    • by bigpat ( 158134 ) on Tuesday December 16, 2003 @12:34PM (#7735680)
      "disclosure does not effect copyright, but it does trade secrets"

      So, the fact that SCO themselves publicly released the entirety of the Linux source code for many years is going to be quietly swept under the table? No, there are no trade secrets in the Linux source code. SCO's position on making their allegations public makes no sense except as a way to prevent people from replacing bits of code that might actually be infringing. But since SCO has been releasing Linux Code themselves for years the best that they could reasonably hope for in terms of a settlement would be an injunction on versions of linux containing the code that they hold the copyright to.

      SCO will never get enough money out of their claims to even pay their lawyers, only ill will.

    • by EvilTwinSkippy ( 112490 ) <yoda@ e t o y> on Tuesday December 16, 2003 @01:15PM (#7736053) Homepage Journal
      Reno, NV (AP)

      SCO has announced the hiring of Mr. Mohammed Sahhaf to the position of Press Relations. Mr. Sahhaf, known in the US as "Badgad Bob", had a few things to say during the announcement:

      In regards to the outcome of the case he replied "Allah willing, we will be feasting on the penguin blubber of IBM!"

      I regards to the recurring Denial of Service attacks on SCO's network: "They are committing suicide at the gateways!"

      In regards to the present setback in court he replied: "We have them surrounded with caselaw."
  • by AtariAmarok ( 451306 ) on Tuesday December 16, 2003 @11:51AM (#7735138)
    This protects the court, because if the code itself became part of the court records, SCO would have to sue the court itself for violation of SCO intellectual property.

    "We find this Court to be in contempt of SCO!!!"
    • by pjrc ( 134994 ) <> on Tuesday December 16, 2003 @12:08PM (#7735370) Homepage Journal
      Judge Wells seems to have shown some contempt directed at SCO. She specifically commented about their providing the SysV code to IBM in a useless printed paper format. When Kevin explained that they knew IBM did something wrong based on IBM's public statements (and therefore needed all the code to figure out exactly what), she replied that IBM wasn't the only party making statements to the press!
  • Who cares (Score:3, Insightful)

    by leifm ( 641850 ) on Tuesday December 16, 2003 @11:51AM (#7735141)
    IBM kill this when they feel so inclined, so just pretend SCO doesn't exist.
  • by mrpuffypants ( 444598 ) * <mrpuffypants AT gmail DOT com> on Tuesday December 16, 2003 @11:52AM (#7735146)
    "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.

    So they're afraid that releasing the code could encourage other people to take it and integrate into their own OSes? Yeah, there's a good idea. I wouldn't touch anything SCO-code-related with a 20-foot pole.
  • Not unreasonable (Score:5, Insightful)

    by Anonymous Coward on Tuesday December 16, 2003 @11:54AM (#7735172)
    If they are proved to be wrong, the code will come out anyway.

    If they are right, their valuable source code will be released on the internet and lose all its value if it is open court.

    A court case shouldn't be allowed to trample over people's rights. It's quite normal for commercially secretive cases to be held in camera (but only for the sensitive bits) - such as trade secrets, and other similar issues.
    • by isn't my name ( 514234 ) <> on Tuesday December 16, 2003 @12:07PM (#7735354)
      Not only is it normal, but I imagine if the magistrate initially opened the court up, it could lead to a charge of prejudice and a reversible error on appeal.

      The court does not get a copy of discovery materials. They only see what the parties choose to submit into evidence. However, the next hearing will likely discuss that evidence in enough detail that, unfortunately, it makes sense for the hearing to be closed.

      I suppose that IBM could move to have the transcript released if they can claim that there was nothing covered under the protective order discussed. And, particularly given that Kevin McBride admitted in court the last time that they have no evidence from Sys V and that they don't have a copy of AIX, I would imagine that any evidence SCO submits will only come from Linux and that it would then be easy for IBM to argue for opening the transcript.
    • by CoreDump ( 1715 )
      Correct. The court has a duty to ensure that until this is resolved, that neither party is unduly damaged in the process. It is not a forgone conclusion that SCO will fail ( or that case would have already been dismissed ), so the judge rightfully must maintain the Status Quo and allow SCO to declare the code is confidential and keep it sealed until or unless a determination is made otherwise.

      SCO has won nothing here by allowing it to be kept sealed. As has been pointed out, they still have to put up o

  • by MosesJones ( 55544 ) on Tuesday December 16, 2003 @11:55AM (#7735180) Homepage

    Well if they'd released it into Open Court they'd have had to sue the US Judicial System, so maybe the Judges just got scared ?

    I can imagine it now

    Darl McBride : "By forcing our code to be shown in open court the US Judicial system has infringed on our copyright and we demand a royalty from every sentence now uttered in court which is a derivative of ours... which is all of them"

    Next week SCO sue the Department of Defense for using SCO infringing software in the conquest of Iraq.... and demand Iraq as payment.

    Darl McBride leader of Iraq...
  • by mackman ( 19286 ) on Tuesday December 16, 2003 @11:55AM (#7735188)
    I'm just quoting from memory, but an old press release said something like,

    "Open source leaders have refused to take action [and remove the code]".

    And then a few sentences later,

    "We don't want them to take out the code because then we can't sue them".

    Stupid bitches.
    • by cgenman ( 325138 ) on Tuesday December 16, 2003 @12:43PM (#7735763) Homepage
      The executive board [] of SCO consists of:

      Darl C. McBride
      Chris Sontag
      Robert K. Bench
      Reg Broughton
      Sean Wilson
      Larry Gasparro
      Jeff Hunsaker
      Ralph J. Yarro III
      Steve Cakebread
      Edward E. Iacobucci
      R. Duff Thompson
      Darcy Mott
      K. Fred Skousen
      Thomas P. Raimondi, Jr

      If you see any of these people in years following the implosion of SCO, do not give them a job. Do not enter into contracts with them. Do not loan them your car. They have proven themselves incapable of planning for the future of a company and incapable of behaving like mature partners in the sphere of business. At a time when SCO desperately needs to be investing in research and development, these people are plunging the company into bankruptcy. They're taking a tremendous gamble with their shareholders money, a gamble which even if successful would only mean residuals on existing Linux implementations in the US, and a painful migration for everyone else to OpenBSD. They're betting everyone else's money on a long shot, and should be held accountable for their irresponsible actions.

      Once again, those names are

      Darl C. McBride
      Chris Sontag
      Robert K. Bench
      Reg Broughton
      Sean Wilson
      Larry Gasparro
      Jeff Hunsaker
      Ralph J. Yarro III
      Steve Cakebread
      Edward E. Iacobucci
      R. Duff Thompson
      Darcy Mott
      K. Fred Skousen
      Thomas P. Raimondi, Jr

      • by saforrest ( 184929 ) on Tuesday December 16, 2003 @12:52PM (#7735853) Journal
        Well, that's a pretty wide net. For example, take one from the middle of the list: Ralph J. Yarro III.

        A google search turns up this [], which mentions all these associations:

        Ralph also servers as Chairman of the Board of Trustees of Angel Partners, a 501(c)3 support organization for the Church of Jesus Christ of Latter-Day Saints. He is also a Trustee for the Noorda Family Trust, the Scenic View Center, and the Worth of a Soul Foundation. He is the Chairman of the Board of Directors of Altiris, AP Software, Caldera Systems, Center 7, Coresoft, and Helius. He sits on the Board of Directors for: the Canopy Group, 2NetFX, Arcanvs, Cogito, DataCrystal, Expressware, Global Prime, The Guy Store, HomePipeLine, iBase Systems, Interworks, Lineo, MTI, ManageMyMoney, Nombas, Profit Pro, Recruit Search, Troll Tech and TugNut.

        Of course it's easy to avoid giving money to the Mormon church (well, unless you're Mormon, I suppose) but who knows what subsidiary of one of these other companies you might be dealing with.

        Still, I suppose you can avoid dealing directly with these people and still produce a tangible effect.
  • Thoughts (Score:5, Insightful)

    by TheSpoom ( 715771 ) * <> on Tuesday December 16, 2003 @11:56AM (#7735194) Homepage Journal
    Here's what I'm thinking of this whole thing.

    1. Their code is already out there. Identifying what it is will not "make it public", since, allegedly, it is already public and being distributed with Linux.
    2. This means that SCO can continue to say, "You have our code, but we're not telling you what you stole, and you still have to pay us for it."
    3. Linux users aren't getting any value from paying the licence fee. The only thing they're getting is a promise not to be sued.

    What prevents someone who's being sued for having SCO code from saying, in closed court, of course, "OK, we'll replace it"? And then, perhaps, release their changed code to the public, not necessarily identifying the SCO code but just showing possible replacements inside Linux that people could place?

    I just wait for them to sue a Linux end-user... should be fun.
  • Get a clue.... (Score:5, Insightful)

    by BlabberMouth ( 672282 ) on Tuesday December 16, 2003 @11:58AM (#7735231)
    "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.

    The fact that I have seen your code does not make it part of the public domain. This is just silly.
  • by GillBates0 ( 664202 ) on Tuesday December 16, 2003 @11:58AM (#7735236) Homepage Journal
    "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.

    What exactly is Darl trying to say here...I can no longer read around his incredibly twisted language. I think the only reason why they can't open the "offending" code up to the community is because they don't want Linux to be fixed, they want it to die. If all they wanted was money, they wouldn't have bothered to keep the code a closely guarded secret.

    Another reason, ofcourse, is that there is NO offending code, and they want to prevent a public hue and cry over bits and pieces of for and while loops.

  • Oh, calm down. (Score:5, Interesting)

    by JeanPaulBob ( 585149 ) on Tuesday December 16, 2003 @11:58AM (#7735237)

    Once again SCO is refusing to tell Linux users just what code they claim is infringing on their IP rights, while still threatening to sue corporations running Linux.

    So far, SCO is only engaging in vague threats about future action. They haven't actually sued anybody over Linux-related copyright issues. Yes, that's still scummy, but until they actually do something, it's just a nuisance. I suppose someone like Redhat could sue them for business damages, but that's it, AFAIK.

    Let's just wait and see if they try any specific threats without letting us know what code they think is in violation.

  • Bad for Linux (Score:5, Insightful)

    by ybmug ( 237378 ) on Tuesday December 16, 2003 @11:59AM (#7735244)
    This is not a good sign for the Linux community. If they were going to publicly state what code has been infringed on, then it would be easier for everyone to go through it. But, SCO only has to disclose the code that they think has been stolen in a private court, then only the people who are involved with the trial will have the opportunity to go through the evidence. It just puts more work on Linus and co.
    • My thoughts exactly... although I don't see where this is 'bad for linux' exactly... just makes sure that the case is longer and more drawn out because IBM and Co. will not have the benifit of the OS community to do leg work to find the credit for contributed code. SCO learned the last time they publicly showed any code how quickly the OS community could find the true roots of the shown code.
  • by Vexler ( 127353 ) on Tuesday December 16, 2003 @12:01PM (#7735274) Journal
    As several sources, including Bruce Perens' fine analysis of code fragments thus far disclosed, have indicated, some of what SCO is claiming as their IP in fact stems from material that were in the public domain as far back as the 70's. If this can be established beyond the shadow of a doubt in court, then they should have no right to keep private that which is already public and the codes can ultimately be disclosed.

    It's somewhat similar to my attempting to keep the contents of "Encyclopaedia Brittanica" secret by claiming IP rights, only to realize later that I never owned it, do not own it, and will never own it. Therefore, I would have no right to keep it confidential since my original claim of ownership is debunked.
  • by Conspiracy_Of_Doves ( 236787 ) on Tuesday December 16, 2003 @12:01PM (#7735276)
    Do you think that the court can be made to understand that the only reason SCO doesn't want anyone to know what code is infringing is that two hours later, nobody is going to be using that particular code any more and therefore won't owe SCO anything?
    • You can't have it both ways. You allow the code to be used, or you say "this is mine, get your own!"

      Jeez, only in Amerika, can you threaten legal action against someone and not have to tell them what law was broken. What happened to simple cease and desist? "This is my code and you have 30 days to stop using my IP."
  • stock scam (Score:5, Insightful)

    by mabu ( 178417 ) * on Tuesday December 16, 2003 @12:01PM (#7735280)
    What really blows me away about this whole debacle is the value of SCOX. At around $15/share, this same time last year it was only a few bucks per share. Someone's buying this crap and someone's going to get raped. People better check to see their mutual fund managers aren't taking them for a ride. All these shady court arrangements are only prolonging the inevitable decline of SCO, and when that happens a lot of people are going to lose a lot of money. I hope the SEC is looking into the stock dealings.
  • 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

    Thank you for your brilliant insight!
  • by leoaugust ( 665240 ) <.moc.liamg. .ta. .tsuguaoel.> on Tuesday December 16, 2003 @12:04PM (#7735316) Journal

    Judge Damon J. Keith, in the Cincinnati ruling, opined that "Democracies die behind closed doors."

    Little surprise, Darl figures SCO will survive behind closed doors.

    And it is true that SCO will survive only as long as it is behind closed doors. Open the doors, let the light shine, and let people pore over the code .... SCO is then as good as dead ....

  • by cenonce ( 597067 ) <anthony_t@ma[ ]om ['c.c' in gap]> on Tuesday December 16, 2003 @12:06PM (#7735333)
    I think people are confusing this case with an open-source v. open-source fight.

    While I appreciate the "community-nature" of open-source and Linux, the average user does not have a right to see the infringing code just because he or she feels personally affronted by SCO. If you were personally named in the lawsuit, then you should be able to see the code.

    Assuming SCO has any valid case, it is going to be determined in a Court of Law, not the Court of Slashdot. If SCO happens to win its case against IBM, et al., then the "proprietary code" in which it claims Linux infringed would no longer be "proprietary" if SCO released its source to every Joe Linux-User who asked for it. You can't expect a company to shoot itself in the foot just to prove a case in a Court of Law (though I guess Slashdotters might expect it from SCO).

    Let IBM's goggle of lawyers fight this out. My sense is that they have half-a-clue as to what amounts to infringing code. Anyway, with IBM on its side, it's like having Daddy Sawbuck's pay the Open Source community's legal fees!

    • by MisterMook ( 634297 ) on Tuesday December 16, 2003 @12:30PM (#7735617) Homepage
      1. You do not talk about Open Source Fight Club.
    • > it is going to be determined in a Court of Law, not the Court of Slashdot.

      "The Court of Slashdot", I like it...

      Judge: "Mr. ForeGeek of the Jury, have you reached a verdict?"
      FGOTJ: "Yes, Your Honor"
      Judge: "What say you?"
      FGOTJ: "We find the defendant guilty of Trolling in the first degree"
      Judge: "I sentence the defendant to -1, Flamebait!"

      That should teach 'em! Or not...

    • by UID30 ( 176734 ) on Tuesday December 16, 2003 @12:43PM (#7735765)
      Mising the point entirely, as I see it. Apparently I HAVE the source code since I HAVE linux sources. There is no trade secret involved here since they have already made all the code public by distributing linux sources themselves.

      As I see it, they just don't want the public to know which segments they are laying claim to ... because every example they have give the public so far has been correctly attributed to other sources by the open source community. They want to obfuscate the truth by moving the case into a realm where only lawyers can see the evidence (who may not be as adept at tracking down source code origins).

      A good recourse for IBM would be to hire on retainer the "code trackers" who identified previous source code origins, use them to identify all the source code origins, and use tham directly against SCO in court. Of course, who really wants to get tangled up in this debacle? Nobody with any sanity. That is what SCO is betting on, IMHO.
  • by infolib ( 618234 ) on Tuesday December 16, 2003 @12:06PM (#7735344)
    If not before, then when they've lost their case, their market and their reputation and the shareholders agree to give what's left of SCO to ESR in return for his VA Linux stock ;-)
  • by mabu ( 178417 ) * on Tuesday December 16, 2003 @12:11PM (#7735401)
    String Copy PLUS(tm)
    (c) AT&T,SCO
    char *sppy(const char *s2) {
    static char s[100];
  • by UnknowingFool ( 672806 ) on Tuesday December 16, 2003 @12:16PM (#7735464)
    While the closed proceeding is disappointing to Linux advocates, it is not as much as a set back as one might think. After all, IBM still will get access to the code. With IBM's resources, I'm sure they can skillfully analyze and debunk SCO's claims. While we cannot do so, our analyses would not have mattered to the court anyway. Those who may have been invovled the the "alleged" code might be ready to receive some inquiries from IBM. Namely the two former SCO/Caldera employees, Linus, etc.
  • by sherpajohn ( 113531 ) on Tuesday December 16, 2003 @12:19PM (#7735490) Homepage
    In way this makes sense - SCO should not have to show its source code to compare with the alleged infringing linux code. On the other hand, *if* they win and*if* the infringing code is removed from the linux source, a simplecomparison of the pre and post source will clearly show the infringing code.

    I think the crux of the agrument to reveal this in closed court is to avoid SCO having to show its code in public. They should have the right to keep their source "closed".

    Don't get me wrong - I think Darl and Co are all smoking crack -but they should be allowed to retain the rights to propietary source code.
  • by gvc ( 167165 ) on Tuesday December 16, 2003 @12:19PM (#7735494)
    Under the terms of discovery, the discloser may
    label certain parts "confidential." If challenged
    the onus is on the discloser to justify the

    The transcript of the court session is public and
    this standard protective order is the only thing
    mentioned. I am quite certain there was no
    further side-deal with the magistrate.

    While I would not put it past SCO to label
    everything confidential, that would be an abuse
    of the process. I doubt the magistrate would
    allow it.

    Stowell's announcement is just SCO's usual
    disingeniuty in reporting the facts. Remember
    that this is the person who claimed the judge
    "flipped a coin" in deciding to rule in favour of
    IBM's motion to compel discovery.

  • the last time... (Score:5, Insightful)

    by deego ( 587575 ) on Tuesday December 16, 2003 @12:19PM (#7735501)
    The last time SCO *publicly* "revealed" some examples of infringed source code, the claims were shred to pieces in hours by the community... now they shouldn't make the same mistake twice :)
  • SCO=CoS! (Score:5, Funny)

    by CaptainAlbert ( 162776 ) on Tuesday December 16, 2003 @12:25PM (#7735561) Homepage

    It's official! The Santa Cruz Organisation (SCO, $CO) have been taking lessons from their close acronymical relatives the Church of Scientology (CoS, Co$). Don't believe me? The evidence is quite compelling:


    • CoS: Tell you that in order to be a happy and successful person, you must pay them a lot of money, because they are the sole owners of the only mental health "technology" that can save you from psychiatry;
    • SCO: Tell you that in order to be a happy and successful Linux user, you must pay them a lot of money, because they are the sole owners of the only operating system technology that can save you from Microsoft;

    Spurious Copyright Lawsuits

    • CoS: Bring expensive lawsuits against organisations who publish details of their courses, doctrines, rituals and modes of operation, in an attempt to spread fear, uncertainly and doubt and to silence their critics;
    • SCO: Bring expensive lawsuits against organisations who publish what they claim is "their" intellectual property, in an attempt to spread fear, uncertainly and doubt and to inflate their share price;

    Unwarranted Secrecy

    • CoS: Refuse to release details of what goes on inside their organisation behind their razor-wire fences, even though they claim to be a peaceful and benign religion with right on their side;
    • SCO: Refuse to release details of which parts of Linux souce code they believe are infringing on their copyright, even though they claim to be a good and responsible company with right on their side;

    Playing to the media

    • CoS: Issue gushing press releases about how their cause is misunderstood and misrepresented; claim that in the face of (alleged) intellectual property misappropriation, their lawsuits are the only proper course of action;
    • SCO: Issue gushing press releases about how their cause is misunderstood and misrepresented; claim that in the face of (alleged) intellectual property misappropriation, their lawsuits are the only proper course of action;


    • CoS: Act as if the whole world is conspiring to destroy their organisation, publish invented and overblown claims of harrasment and threats towards their members in order to portray their opponents as criminals;
    • SCO: Act as if the whole world is conspiring to destroy their organisation; publish invented and overblown claims of denial-of-service attacks on their servers in order to portray their opponents as criminals;


    • CoS: Identify that most of the hostility towards them comes from particular groups and individuals, then seek to discredit those people by publicly accusing them of being violent, sexually immoral, drug addicts or anything else they can dream up.
    • SCO: Identify that most of the hostility towards them comes from particular groups and individuals, then seek to discredit those people by publicly accusing them of being communists, hippies, deadbeat college students or anything else they can dream up.

    Yup, it's only a matter of time before SCO declares itself a religion, McBride declares himself God, and the staff are made to buy e-meters, exorcise their body thetans and start work on a remake of Battlefield: Earth... remember - SCOentology, you heard it here first, people. :)

  • by bofkentucky ( 555107 ) <.moc.liamg. .ta. .ykcutnekfob.> on Tuesday December 16, 2003 @12:25PM (#7735562) Homepage Journal
    I realize that this is civil and not criminal court, but doesn't IBM have a right to see the evidence against it so they can mount a defense. SCO would have to present a section of code, then IBM would have to rush to produce documentation of the lineage of that section, whether it came from "Ancient" (pre-V7/32V) AT&T UNIX, CSRG/Berkley/BSD, SysV or minix/linux/*BSD and whether the code is "known" (ie Lion's book, Pre-92 BSD sources, K&R, et al). Such a proceedure would cause a very slow, stop/start trial that could carry on forever.
    • by steveha ( 103154 ) on Tuesday December 16, 2003 @01:43PM (#7736377) Homepage
      Yes, go read the stories on Groklaw. IBM does indeed have a right to see the evidence against it; that was the core of the recent ruling that went against SCO. SCO said they didn't want to show any code until IBM gave them about ten billion things (e.g. the source code for every version ever of AIX). IBM argued that SCO needed to show some evidence, since they are the plaintiffs and all. The judge ruled completely for IBM, and SCO has 30 days to cough up specific evidence (which must include specific lines of Linux, no more of this "here's a few hundred source files; you figure out which lines infringe" they already tried). Also, IBM doesn't have to provide any evidence during the 30 days; all discovery is on hold until SCO provides the evidence.

      All of the above is bad for SCO, good for IBM. As FreeUser insightfully observed above [], this is an attempt by SCO to spin a FUD web since they desperately wish for some good news.

  • WTF??? (Score:5, Insightful)

    by Dolohov ( 114209 ) on Tuesday December 16, 2003 @12:28PM (#7735596)
    If they do in fact have code which is protected by copyright, then they have nothing to fear. Copyright still protects things that have been seen by the public -- it's called publication. It seems to me that the only reason copyright exists in the first place is to encourage people to publish their works by allowing them to still own a work once it is in the open.

    If, on the other hand, SCO believes that it's control over the code is only based on its status as a trade secret, then they have no recourse against the Linux community, only (theoretically) IBM. Keeping any infringing code secret wouldn't help.

    It seems to me that there are only a few possible reasons that SCO wants to keep all this secret, which are unrelated to their stated reasons:

    1) They need Linux to continue infringing as long as possible. My guess is that the length of infringement, which will stop 24 hours or so after public disclosure, will directly affect any increase the damages paid by IBM.

    2) They want to catch IBM in a contempt of court charge. If the code is sealed by the court, and it becomes suddenly removed before being made public, then SCO can say that IBM leaked information, and so is in contempt of the secrecy order. This makes IBM look very bad, and gives SCO a strong argument that IBM has clearly shown itself to be untrustworthy with information. It's an interesting gambit, relying on the fact that the information will need to be widely available within IBM for its defense, and bets that at least one of those people will spill the beans.

    3) They have no idea who actually contributed the code in question. If they open it up to the public, there's always the possibility that some expert in the field will stand up and say, "No, I wrote that code, not IBM, and I have never seen SCO's code". Opening the code suddenly gives IBM a very large army of people who will study and scour the code SCO releases to find any evidence in IBM's favor whatsoever. With it secret, the burden is entirely on IBM, and so the process will take longer and evidence may be missed. This also plays into #2 above.

    4) There is no code. SCO's allegations have been a delicate web of half-truths and bravado, exposure of which will mean certain death to the company. It will lose its case, it will not be purchased, and its lawyers will not be paid.
  • by starseeker ( 141897 ) on Tuesday December 16, 2003 @12:32PM (#7735647) Homepage
    IBM releases an "update" to the Linux kernel, which does not include any of the SCO code. They are going out of their way to avoid hurting SCO, because their release of Linux has removed any SCO code they don't want the public to see. They don't tell anyone what SCO's code is directly, but instead release a derivative work of legitimate GPL code, using only legitimate GPL code and not SCO code that SCO doesn't want revealed.

    Of course, this is demonstration by absence. However, since Linux already exists in the open, the code SCO is not talking about is not secret except in the fact that no one knows what they are claiming.

    I find this arguement very interesting:
    "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.

    What is he refering to by "open this up"? If it's code in the Linux kernel, it's already open in the sense of having been seen. If they have any LEGITIMATE claims, it is NOT "opened up" in the sense of everyone being able to use it. The only thing they would "open up" would be how we can get their crap (if any) out of the kernel, and if they're going to try to make proprietary arguments on THAT basis either they are totally out of our minds or our IP related laws in the country have utterly failed. I can't believe the judge didn't ask them to explain how code already in the public eye as part of the Linux kernel can possibly be further harmed by identification, and how they expect to make money off of not identifying it publicly. The only possible answer is a study in absurdity. I want to hear them say "If we let any knowledge out of how to remove our code, we won't be able to try and force Linux users to pay us for future versions" in front of a judge.

    I suppose the court isn't able or required to look into the business model of SCO, but come on.

    If this nonsense drags on long enough, I say we put an intense concentration of effort into EROS, make it functional at or near the Linux level with it's advanced concepts in place, and introduce the world to a whole new scale of OS security and robustness, and make them wish they had never even heard of the Linux kernel. Maybe IBM would be willing to back such an effort - they developed some of the original ideas behind it, and by now they probably appreciate open source's potential or they would have abandoned it. They say a good fighter never hits where the opponent is expecting the punch, and that would sure be a pretty KO bunch for SCO.
  • by A nonymous Coward ( 7548 ) * on Tuesday December 16, 2003 @12:35PM (#7735686)
    This all assumes they really do have good instances of infringement to disclose to IBM.

    Pretty much only SCO and a few suckemup analysts believe that.

    Pretty much the rest of the world doesn't believe it.

    They have 30 days to come up with ... something. If they come up with anything at all, it is likely to be shot down fast and hard by IBM.

    And then, who cares if it is public or not?

    What if they come up with ... exactly nothing?
  • Stupid Legal Tricks (Score:4, Interesting)

    by Rupert ( 28001 ) on Tuesday December 16, 2003 @12:37PM (#7735705) Homepage Journal
    Anyone want to lend Linus a couple of lawyers so he can sue SCO for tarnishing his trademark? A C&D preventing SCO from mentioning Linux in their press releases might put a hitch in Darls giddyup.
  • by anthony_dipierro ( 543308 ) on Tuesday December 16, 2003 @12:45PM (#7735782) Journal
    In Soviet Russia, corporations obey courts.
  • by starseeker ( 141897 ) on Tuesday December 16, 2003 @12:46PM (#7735791) Homepage
    "SCO characterises the licenses as a source of 'immunity' from future intellectual property claims."

    If I were to say "I own a lot of code in Microsoft's OS" and then offer a license to Windows users offering "immunity" from me suing them, and all the while not revealing any evidence in order to prevent Microsoft or the users from eliminating the components I say are causing them to owe me $$, how would that be looked upon by the press and the courts? What if I generated a lot of press saying:

    "My ancient DOS code is the core of Windows! End users should pay me a license fee or face lawsuits!"

    "I can't reveal why my code justifies this demand or what it is since that would damage my ability to leverage my IP."

    "Microsoft cannot release a patch or update to resolve this issue - the code is too deeply entrenched. Plus, the rest of Windows is a derivative work, including things like NTFS."

    The responses would be a) Windows is at fault, not the End Users and b) No tikee, no laundry. Show evidence or booted out the court door. Now, this is what SCO is doing to Linux, but somehow the fact that the author's price for Linux is $0 makes the End Users responsible????? What makes $0 special as opposed to $X? Why are End Users suddenly no longer as innocent in Linux as they are in Windows?

    Oh, and now apparently acting decently and acting in good faith are now liabilities. Allowing someone a chance to fix a problem or a mistake is against corporate policy since it's more profitable to try and make them pay through the nose for it for eternity. Oh, and make anyone who benefits from that mistake, however unknowingly, also pay. Yay corporatism.

    This whole thing is a crock. The saying "No good deed ever goes unpunished" certainly seems to be true for the open source community. But of course, "good deeds" are a threat to commercial suppliers of helpful services and products, and therefore are no part of a proper capitalistic system. Lord, what a messed up world we (or at least SCO) live in.
  • Big Deal. (Score:3, Informative)

    by callermann ( 629230 ) * on Tuesday December 16, 2003 @01:03PM (#7735940) Homepage
    I don't know why everybody is making such a big deal over this. If you want to see the infringing code get it from sco. They will make it available (provided you sign a NDA).

    Taken directly from the SCO Linux IP License FAQ [].

    15. Is SCO willing to show any examples of source-code violations to Linux users?
    SCO has been showing examples of direct line-by-line copying of UNIX code into Linux to hundreds of industry analysts, reporters, customers, partners, and industry influencers since June of this year. To view this code, interested parties have had to sign a non-disclosure agreement verifying that they would keep this code in confidence. SCO continues to identify and show this code to parties willing to sign a non-disclosure agreement.

    There you go, talk with SCO, sign the NDA and start grep'ing the source tree, then lets really see if SCO has anything.
    • Re:Big Deal. (Score:4, Insightful)

      by Our Man In Redmond ( 63094 ) on Tuesday December 16, 2003 @02:41PM (#7737065)
      There are two "big deals" involved.

      First, if I as a kernel hacker sign an NDA with SCO, the odds are good that I will have to quit the project. Having seen SCO's code, I could open myself up to a lawsuit if my name came up attached to something they claimed was theirs.

      Second, if I as anyone sign an NDA, I wouldn't be able to tell exactly what was infringing. I'd just be able to say, "Yep, it looks like SCO is right" or "Nope, SCO is full of it" but not have any basis for my claims that I could reveal to anyone. So what's the point?

      Better this should come out in discovery where it will eventually be part of the court record.
  • by Todd Knarr ( 15451 ) on Tuesday December 16, 2003 @01:04PM (#7735956) Homepage

    Someone needs to explain to the judge that SCO's claim is ridiculous as a matter of law. Assuming SCO proves their claim, as a matter of law IBM must be allowed to remove the infringing code. The code for Linux containing SCO's code is already available to the public, and the now-clean code will be available to the public per the terms of the GPL (which IBM would still have to abide by). A simple diff of the two will reveal exactly the code SCO's trying to keep unrevealed. The only way to prevent this would be to either prohibit IBM from curing the infringement (not legal) or to pull in every other Linux contributor and take away their right to license their own intellectual property (the parts that don't belong to SCO) under terms they find agreeable (again not legal, remedy doesn't extend that far beyond the plaintiff's own IP).

    • by Little Brother ( 122447 ) <> on Tuesday December 16, 2003 @01:18PM (#7736090) Journal
      NO! Don't try to explain the law to a judge! Judges tend to understand the law better than the average ./er. You might have to explain the technology to the judge, but I'm sure the defence will do an ample job at explaining that SCO's claims are BS. The defence WILL, by law, know all the evidence against them and shouldn't have a hard time proving their innocence of the noncrime. All we really need to do is wait for a verdict and do what we can to inform INVESTORS that SCO's claim is ridiculous as a matter of law.
  • by sdcharle ( 631718 ) on Tuesday December 16, 2003 @01:13PM (#7736033) Journal
    The news would be something along the lines of: The Orlando Magic ban audiences from attending games because 'we can't make baskets when people are looking'.
  • by OldHawk777 ( 19923 ) * <adelovant&verizon,net> on Tuesday December 16, 2003 @01:20PM (#7736111) Journal

    (1) SCO is hiding their lies. Legal wrangling by SCO to find a favorable (technology incompetent) court is a waste of corporate financial resources and burdens the recourses of interested others. SCO is the only party in any possible case that does not want to resolve these problems ASAP. Rather than a rush to court by SCO, it appears SCO is in a rush to scam and defraud businesses internationally. SCO needs to withdraw from the game they are playing, or play and lose, before some State Attorney General initiates a criminal investigation.

    (2) SCO could win in a USA court and lay-claim to Linux. SCO would never win in a Canada, EU, China, India, French, Russian, British, Irish, Scot, German, .... So, in the USA, Linux would have underground dealers and eventually the FBI and ATFS (Alien Technology Free Software) agents would be arresting folks like me and you. The prison sentences will be comparable with cocaine and heroin dealers ... (I know, but ...) look at PA-1+2, DMCA, HDA, ... directions (forget the US Constitution protecting US citizens). In other words, SCO is already in their grave the world community will not allow this frivolous BS to invade their sovereign nations. As for the USA ... we wait to see ...?

    The USA FLAG waived proud and high, as the USA Constitution ideals died in Congress.


    Reality is a self-induced hallucination.

    Plutocratic Capitalist perverts subverting Pluralistic Democracy and Open Economy are as clueless as Marie Antoinette and King Louis XVI (1755-1793).
  • Class Action (Score:4, Interesting)

    by attobyte ( 20206 ) on Tuesday December 16, 2003 @01:30PM (#7736205)
    Lets file a class action law suit agains SCO. They are threating us with no proof. I would guess the EFF might be intrested in this.
  • by Compulawyer ( 318018 ) on Tuesday December 16, 2003 @02:23PM (#7736837)
    This type of thing is a standard occurrence in lawsuits dealing with matters alleged to be confidential or trade secret. Before you go flaming away on me, read to the end of this post, please, and I'll explain why you don't need to know what SCO's code says.

    In lawsuits in federal district courts (and most state courts as well), the rules of discovery provide that opposing parties can get the other side to produce any information that is "reasonably calculated to lead to the discovery of relevant, admissible evidence." Federal Rule of Civil Procedure (FRCP) 26(b)(1). This means that litigants have some leeway. They are not limited to asking for evidence that is admissible in court but rather can get ANY information that would LEAD to the discovery of admissible evidence. In other words, litigants do not get free, unfettered access to each others' files, but can go on limited "fishing expeditions" so long as they can show that they have some reasonable expectation of finding fish where they are fishing.

    That said, assume (as the judge must at this stage of the litigation) that SCO actually does have some trade secret or confidentiality interests to protect in its source code. That secret or confidential status would be forever lost if disclosed to the world. SCO should not lose any valid rights it has simply because it sued to enforce those rights. (Take it easy flamers - we're making assumptions here still - keep reading!).

    Obviously there are tensions among the right of a party to get information from an adversary to defend itself, the right of an opposing party to protect its trade secrets or confidential information, and the public's right to have judicial proceedings in the open. The Federal Rules of Civil Procedure balance these interests in Rule 26(c) which proivides for protective orders. Such orders are issued to keep confidential information from becoming public. There are several features which ensure that the use of such orders is not too problematic:

    1. The material produced under such an order must still be produced to the other side (and potentially the court if the litigation goes that far. In this case, I think everyone agrees that IBM has a substantial interest in gettin gthe information to defend itself. I also think most Slashdot readers would agree that in this case, IBM's interests are closely aligned with those of the Open Source community.
    2. The information claimed to be confidential must actually be confidential. That means that information which is not truly confidential cannot be made confidential because a party produces the information under the terms of a protective order.
    3. The judge is free to reveal anything he determines is not confidential. A protective order is called an interlocutory order, meaning that it is one of those types of orders issued to keep the suit moving forward and does not finally determine the rights of the parties. Basically, it is the way the Court manages litigation. Because these orders do not (usually) determine the rights of parties, the judge is free to modify or revoke those orders at any time.
    Now for all those who want desperately to see SCO's source code, I ask this: WHY do you want to see it so badly? If you enjoy reading source so much that you just HAVE to see SCO's code, then I suggest you sign SCO's nondisclosure and get it. If however, you want to do your own comparison to Linux code, then I submit that the community as a whole has no need to see what SCO has. IBM will adequately protect the community becuse its interests are so closely aligned with those of the community. If your burning desire to do a comparison is to prove that SCO's claims have no merit, again, IBM will do this job just fine. Sit back, be patient, and trust that IBM will defend itself (and the community) vigorously.
    • by kindbud ( 90044 ) on Tuesday December 16, 2003 @02:38PM (#7737041) Homepage
      I ask this: WHY do you want to see it so badly?

      So that the offending code, if present, can be removed from my systems and be replaced with something I have a license to. I can't do that without knowing what sections of code (if any) are infringing SCO's rights.

    • by starseeker ( 141897 ) on Tuesday December 16, 2003 @02:58PM (#7737315) Homepage
      "assume that SCO actually does have some trade secret or confidentiality interests to protect in its source code. That secret or confidential status would be forever lost if disclosed to the world."

      This is where I get confused. If in the Linux kernel, the code is ALREADY disclosed to the world. Trade secrets in the code have already gone bye bye. The only thing NOT disclosed is specificly which code disclosed to the world is SCO's code. What can possible be left to protect? If they don't want it disclosed that they own the code, the effective thing to do would have been to quietly contact key people, get it removed due to confidential IP violations accepted by the lead Linux guys, and live happily ever after. If they didn't want someone to know that code X was owned by SCO, what they have done is sure to have that someone looking through the kernel for things they might recognize as being SCO no-nos.

      The only thing their current course can do is spray mud over Linux. No other goal is consisted with their behavior thus far, unless they are dillusional and think the free software community will suddenly cough up money. They've said that, but I don't see how they can actually believe it. Or maybe I'm just underestimating their cluelessness.
    • by Animats ( 122034 ) on Tuesday December 16, 2003 @03:28PM (#7737635) Homepage
      We don't want to see SCO's source. We want to see SCO's specific claims of infringements within Linux source. If and when SCO ever discloses that, any infringing code can be rewritten.

      The IBM case is a contract dispute. The SCO vs. IBM issues are different from the copyright issues SCO raises in the press and which will eventually be litigated in Red Hat vs. SCO.

  • by stwrtpj ( 518864 ) <> on Tuesday December 16, 2003 @02:38PM (#7737029) Journal

    This thing about SCO wanting to keep the code a secret is a non-issue at the moment. In actuality, if you think about it, it makes perfect sense for SCO to want to do this.

    Look at it this way: You have some code you claim is proprietary and you sue someone for using it. Now, if you can keep the code a secret save for the courtroom, and you lose the case, then you still can keep that code proprietary and continue to charge licenses from people who obtain it directly from you.

    But say instead you're forced to reveal the code to the public and you lose the case. Now you're up shit's creek because you have this code that was proven not to be infringing, but you can't claim it to be proprietary anymore because now everyone can see it. Personally, I'd be more worried if SCO went the other way and was more than happy to show the public. They would not do that unless they thought they had the case all sewn up. The fact that they will not reveal it to the public means they're hedging their bets and want the opportunity to continue using the code if they lose the case (assuming there is anything left the company afterward, but that's another story).

    So don't worry about this quite yet. The code WILL be shown to the party that needs to know, namely IBM. IBM is not stupid. The splendid conduct they have shown before and during these proceedings shows that they know what they are doing. They can shoot holes in SCO's argument almost as good as the FOSS community can. And if they need help, they can rightly argue that they should be allowed to have outside experts view the code (read: Linux kernel maintainers). And in the unlikely case that SCO wins, they will be forced to reveal the code, as it is the ONLY way that it can be removed from the offending software.

  • by RiffRafff ( 234408 ) on Tuesday December 16, 2003 @02:43PM (#7737110) Homepage
    After all, the AT&T vs BSD case was sealed, too.
  • by openmtl ( 586918 ) <polarbear&btinternet,com> on Tuesday December 16, 2003 @03:15PM (#7737508) Journal
    The intent of holding a closed court session is somewhat frustrated by the fact that ALL of the relevant SCO code has already been released and is fully visible to the public !

    Its just that SCO finds that even they don't fully know which lines it is either. Its embarrassing for them so they have resorted to a closed court.

    If it takes a closed court for IBM to discover what the hell SCO are going on about then so be it but fact remains that NO ONE wants the SCO code if it compromises the freedoms that the GPL affords us with respect to the Linux kernel.

    I'm happy to pay good money for a product or service but all I want to know is what exactly am I paying my money for ? Its REAL simple SCO: simply tell me what I am getting for my money. I'll show you my money if you show me your code. Deal ?.

    Then I can make a call if I want it or not. Always wanted to look at OpenBSD/FreeBSD but its the freedoms of the GPL that keep me with Linux.

  • by cdn-programmer ( 468978 ) < minus author> on Tuesday December 16, 2003 @03:59PM (#7738040)
    If SCO actually does have a court order to block IBM from disclosing their claimed infringement (which I seriously doubt BTW) then we can still get around it.

    IBM simply needs to remove any files that SCO has identified and issue a distro. A diff against the latest release will clearly show what SCO is claiming.

    It is totally perposterous for SCO to take this position. The code has already been released. It already IS published.

    So how can IBM be barred from publishing everything EXCEPT what SCO claims infringes? No doubt SCO will try though. The silly fools.

    In any event - a distro devoid of the claimed infringing code will allow every developer in the world who has worked on Linux to note the absence of their code and they can then come forth with the evidence that IBM needs.

    This ploy will go nowhere IMHO
  • Good tactical move (Score:5, Insightful)

    by logicnazi ( 169418 ) <logicnazi AT gmail DOT com> on Tuesday December 16, 2003 @04:44PM (#7738586) Homepage
    Asking for sealed procedings is unfortunatly an all to common move in american justice nowdays, especially in divorce trials. The misapplication of this power is particularlably worrisome because it strikes at the heart of our open system of justice. If the people cannot see the miscarridge of justice they can't correct it.

    While I doubt SCO is particularly worried about (by themselves) rousing congress to a leglislative remedy for computer copyright law (though they could be part of a larger trend that does so) they are worried about too many public eyes.

    Look at how effective publicity and the internet have been in finding examples of prior art in software patent cases. Asking for closed procedings forces IBM to track down every potential witness individually by themselves. No doubt SCO is hoping that with an open source product with developers spread across the globe IBM won't be able to find the relevant people if they can't publisize their claim.
  • by Billly Gates ( 198444 ) on Tuesday December 16, 2003 @04:51PM (#7738676) Journal
    It is official; Netcraft confirms: SCO is dying

    One more crippling bombshell hit the already beleaguered SCO UnixWare community when IDC confirmed that SCO market share has dropped yet again, now down to less than a fraction of 1 percent of all servers. Coming on the heels of a recent Netcraft survey which plainly states that SCO UnixWare has lost more market share, this news serves to reinforce what we've known all along. SCO is collapsing in complete disarray, as fittingly exemplified by failing dead last in the recent Sys Admin comprehensive networking test.

    You don't need to be a Kreskin to predict SCO's future. The hand writing is on the wall: SCO faces a bleak future. In fact there won't be any future at all for SCO UnixWare because SCO is dying. Things are looking very bad for SCO. As many of us are already aware, SCO UnixWare continues to lose market share. Red ink flows like a river of blood.

    SCO has lost 93% of its core developers. The sudden and unpleasant departures of long time UnixWare developers L. Ron Hubbard and Joseph Smith only serve to underscore the point more clearly. There can no longer be any doubt: SCO is dying.

    All major surveys show that UnixWare has steadily declined in market share. SCO is very sick and its long term survival prospects are very dim. If SCO is to survive at all it will be among OS dilettante dabblers. SCO continues to decay. Nothing short of a miracle could save it at this point in time. For all practical purposes, SCO is dead.

    Fact: SCO is dying

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