Court Rules SCO Must Show Offending Code

by , 12:00 PM EST, December 8th, 2003

SCO has made quite a name for itself in recent months, not because of technical excellence, but because of its attempts to wrangle licensing fees from anyone using Linux, and possibly other *nix variants such as BSD and its descendants. The company has also made a splash because of its lawsuits against those who've refused to pay, as well as the lawsuit against IBM that launched the bruhaha.

Thus far it has been primarily a battle of words and legal maneuvering: SCO's lawsuit claims that IBM illegally added code that SCO owns to Linux. IBM has steadfastly refuted the claim and has launched countersuit against SCO. As part of those proceedings, IBM has asked the court to force SCO to show the offending code, something SCO has thus far refused to do.

On Friday, Dec. 6, 2003, Judge Dale A Kimball dealt SCO a major blow by ordering SCO to show the code in Linux that it believes violates its intellectual property rights. According to a news report at C|Net, SCO has 30 days to show the violating code. From the C|Net News story, Judge orders SCO to show Linux infringement :

In a hearing in Salt Lake City, Federal Judge Dale A. Kimball required SCO to produce two key batches of information IBM had sought in the case.

In one batch, called Interrogatory No. 12, IBM sought "all source code and other material in Linux...to which plaintiff (SCO) has rights; and the nature of plaintiff's rights." In the second, Interrogatory No. 13, Big Blue sought a detailed description of how SCO believes IBM has infringed SCO's rights and whether SCO ever distributed the source code described in Interrogatory No. 12.

The information IBM sought is at the heart of the case, a bold lawsuit SCO began in March that alleges IBM moved technology from Unix to Linux against the terms of its contract with SCO, violating trade secrets in the process. SCO is seeking $3 billion from Big Blue, and is also trying to compel Linux-using corporations to license SCO's Unix. The judge's decision is one of the first moves in a case that will affect not just IBM but also other computing giants including Oracle, Hewlett-Packard, SAP and Dell that have embraced Linux.

Read the full account at C|Net.

The Mac Observer Spin:

Now the real game begins and so far, it's IBM:1, SCO:0.

SCO's tactics have so far relied on obfuscation and FUD, rather than facts, as the company has yet to offer proof of its claims. That prevented IBM, Linus Torvalds, Red Hat, and others involved in Linux development from being able to react in an educated fashion to SCO's claims. Assuming that the judge's orders as issued remain in force, that will change. We look forward to seeing what shakes out, but note that the 30 days is up at about the same time as Macworld San Francisco starts.

In the meanwhile, IBM and the rest of the Linux community is banking on the belief that SCO really has nothing to show, or that whatever code SCO does show can be proven to be in use through legal means unaffected by SCO rights.

We should make it clear that we believe very strongly that a company should protect its intellectual property when there is need, but we also believe that there are reasonable way to do this. SCO chose to alienate the industry by making unproven claims, and then attempting to extort fees without proving it has the right to do so. The initial effect has so far been to add some confusion to the Linux and UNIX community, something that Microsoft enjoys seeing. That might change sooner than many of us had hoped.

Judge orders SCO to show Linux infringement