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Why Revealing Any Infringing Source Code is 'Game-Over' for SCO

...and why game-over can't be avoided

Everybody in the open source world and in IT in general knows that the forces of open source software development will quickly replace any code SCO shows as being clearly infringing of any SCO rights. SCO knows this. You know this. My grandma might even know this.

Yet, no rational individual or company is going to pay SCO's licensing fee for use of Linux until SCO can show that there is infringing code. This is true no matter whether that SCO license costs $699, $1399, $32, or 10 cents. To prove that the code infringes, SCO needs to win in a court and for SCO to win, SCO needs to pass legal tests or analysis. These legal tests will require opening of the SCO code base and history at least within the confines of the court and identifying the allegedly infringing areas of Linux.

SCO can't just release the code for all to see however because open source developers will replace it. Because SCO needs to allow for legal analysis of the code which requires at least *some* disclosure ... the only thing SCO can do is negotiate in court for terms that allow the code to be made available for analysis with very strict limits on its disclosure. Something similar to the current SCO NDA would be roughly what is needed but it would have to be expanded somewhat to include SCO's historical CVS trees or whatever SCO uses to store its code history. Now, to achieve this, SCO will be in the position of begging an IBM, a Red Hat and whomever else they meet in court for restrictive disclosure terms. And, IBM or Red Hat would have to be pretty crazy to accept such terms for a lot of reasons.

So, we have to expect that SCO is going to be compelled by its legal opponent to disclose all offending code in a fairly public way in order to enact the necessary legal analysis and we have to expect that the exact lines of allegedly offending code in Linux will be identified publicly during this process.

So, SCO is really between a rock and a hard place here. They can't prove their claim because they can't disclose code, because to do so would cause that code to be replaced. Patches would show up so fast that “lickety-split” would seem slow by comparison. SCO can't show but SCO must show. So what is SCO to do?

Exactly what it is doing. Continue to make bold claims of infringement, of liability, while making no plans to ever show this code – not to anyone. This really means SCO has zero incentive to do anything constructive. And that is exactly how SCO has acted thus far. Some of the constructive things SCO could do include releasing some code as an example or moving forward with its case against IBM.

With all of this in mind, I suggest we all consider today to be “game-over” for SCO's licensing plans. They are dead in the water a day before they were born if my analysis holds.

If you look at this analysis from SCO's view, it seems like IBM could have taken SCO code and tossed it into Linux and SCO would have no course of action because SCO seems essentially powerless right now. SCO however, is powerless only with respect to the licensing issue, not the IBM contract issue. If IBM has misappropriated code to which SCO has rights, SCO can take direct action against IBM and only IBM or other specific infringers. In this case, SCO has no reason to not disclose offending code widely because it should help prove SCO's case - if SCO has a case. With the code already public as part of Linux, there is nothing proprietary to protect. With no proprietary technology to protect and nothing to hide, SCO should just lay out its facts against IBM and let the IP and contract lawyers figure out the truth.

Seems simple. And it should be. That SCO did not take this course of action against IBM can only mean that SCO licensing plan amounts to nothing more than simply digging for gold in the fertile fields of the Linux ecosystem, and doing so without a leg to stand on. That said, there is nothing to prevent SCO from taking a challenge to IBM once these hideous licensing plans fade into oblivion or at any time after that.

So, I think I've shown that the only dollars SCO will collect from its Linux licensing plan are a few odd-ball payments made by firms whose legal counsel are probably both so ultra conservative and so technology averse as to give bad advice. Without those fees, SCO is left back with its original claims to attack IBM and others allegedly responsible for the alleged code arriving in Linux. Those cases will take on whatever life they may but the Linux users, developers, and distributors are not at fault and are thus insulated from being touched. These will be cases between SCO and IBM, not SCO and you or me or Red Hat (although Red Hat is smart to pursue SCO).

Linux is on solid ground going forward with regards to SCO.

On the back side of this little SCO event, we will all realize that the SCO code base has, for several years now, had worth only as a historical reference. It is old technology that has been passed by some time ago. SCO should have decided to stop trying to warm it over and dress it up years ago and new management realized that and then made a new and very unfortunate business plan.

Ethics: How SCO is Unethical

I am surprised that little or no mention has been made of corporate ethics. Especially since we are still in the wake of the Enron, Global Crossing, Martha Stewart/Imclone (the list goes on) ethical debacles. If SCO is in fact knowingly misrepresenting facts, ethics should be at the forefront of this discussion and cases should be in preparation for the day when these misrepresentations are addressed with harsh legal punishments. The public forum SCO has chosen for addressing this issue should magnify the level of damages and punishment SCO receives if breaks in ethical and legal tenets prove true.

In fact, a case can be made today that SCO's actions are unethical. SCO knows it cannot show code and then expect infringing code to remain in Linux. So, SCO knows that even if it proves their case of code infringement, it will not collect licensing fees because to prove that the code is in Linux causes the code to disappear from Linux. So, SCO can't collect license fees and SCO knows this but it still puts together a complete licensing program as if it will collect fees. This is a scam. A dupe.

Aren't scams and dupes unethical? They sure used to be unethical. Illegal in fact. Is this ethical gaffe not being pinned on SCO simply because there are too many steps in the deductive chain? Perhaps. What a shame though if SCO does not get the stick here. The exact reason for ethics in the first place is to provide an individual or corporation with guidelines for acceptable actions in the face of complex and competing demands.

Here's a simpler example. In a recent article, CEO Darl McBride mentioned that SCO cannot disclose the code because SCO needs to protect the IP investments of its customers. SCO so convieniently forgets that the code is already in the public domain. There is nothing it can protect. Isn't knowingly forgetting something as basic as this unethical? I'd say 'Yes.' Illegal? Surely so as well.

[This article was written using the OpenOffice.org office suite.]

More Stories By Paul Nowak

Paul Nowak first used Linux in 1995 while migrating from Sun to Linux at the University of Michigan. He used Linux in subsequent IT projects including web, telecom, telemetry and embedded projects and is currently CIO of a small professional association based in Washington D.C.

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Most Recent Comments
jetchisel 11/02/03 12:05:17 PM EST

"SCO can't just release the code for all to see however because open source developers will replace it. Because SCO needs to allow for legal analysis of the code which requires at least *some* disclosure ... the only thing SCO can do is negotiate in court for terms that allow the code to be made available for analysis with very strict limits on its disclosure."

Sco has used GPL and agreed to it by selling linux on their own. They even made big bucks by doing so.In the end they were not satisfied by what they have. They want more, due to their lack of knowlegde in the "industry" they cant compete with the leading distributor of linux like Big blue, Suse, Red Hat, etc... Suddenly they saw a disturbing fact that one day their company will become obsolete not being able to come up with bright ideas that they need in order for their company to survive the market. Im saying Sco people has no ideas... in fact they have a lot of ideas and one of these is, The master plan... a plan that they think they can make more money out of it. In the real world your ideas cannot come to reality with out financial support. They are desperately in need of cash to fund those bright ideas, and desperate situation call's for desperate measures. Im sorry to say that they are wrong, they made the first mistake by attacking IBM and the opensource community, to be specific.. about L.T. (Linus Torvalds). This guy (L.T.) made a choice not to make linux a proprietary but open to the public to use it, modify it at their own satisfaction, and even sell it with out paying for the copyright(GPL). Isnt that great??
But there is Sco..blaming LT for this matter.
Well thats not surprising for people who are in desperate situations. They will do everything just to survive. Now their after GPL itself, claiming that it is unconstitutional and in the violation of the copyright, antitrust and export control law.. In the first place why did they agree on it and use it to sell their own version of linux? These guys are undoubtedly full of ideas :)

What ever happens to this case even if Sco wins ( which i hope not) , for me its still thesame. This guys that runs Sco is nothing more than a parasite. a parasite who wants to survive in the harsh world of computer Industry. A parasite that will not die with out a fight. How brave this these people are ???? tsk tsk tsk... Good luck Sco cause youll gonna need it....

Richard McKenzie 10/17/03 06:11:11 PM EDT

I am not a lawyer, but if I know someone stole my software code and used it in their products, and since courts are supposed to be public, you can bet I am going to put out my source code to the court and demand they do the same. SCO is full of crap if they think they can get judgment based on "oh, our code is in IBM's product and we want money". Sorry, ain't gonna happen. I also highly doubt anyone would (except for those spinless sellouts at Sun Microsystems) would pay one penny for a SCO license. I sure as hell won't and millions out there won't either.

I would not be proud to work for a company like SCO who earns revenue through litigation instead of sales.

Darl McBride is no different than Osama bin Laden, attacking people and making demands so no more attacks come. It didn't work for him and it won't work for McBride.

moksha 10/07/03 01:37:51 AM EDT

Forget the technical merits of this case. They might not be the deciding factor. What if a Federal Judge - who may coincidentally be LDS - rules in favor or against SCO. The Court of Appeals seem to use criteria other than technical merit and/or "the facts" to render their decisions. Just look at the Microsoft case and the Rambus case as two prominent examples. I do not mention this to add to any FUD, only to air my own paranoia.

A Smith 09/24/03 12:14:18 AM EDT

There's been a lot of speculation about SCO's motivation for their war on Linux. GROKLAW appears to have discovered the definitive documents from way back in February (before SCO filed suit against IBM).

In short, it all started about shared libraries, the idea was to combine UNIX/Linux and possibly wipe out all SCO's competitors, to put SCO on top of the food-chain over Red Hat and other Linux companies, and to force IBM to settle because of SCO's claimed ability to revoke IBM's AIX license.

For full details, read http://www.groklaw.com/

Chuck Talk 08/19/03 08:04:10 AM EDT

Microsoft is funding this effort through "buying licenses" and the press - more than likely. SUn Microsystems bought in through buying licenses (whether intentional or not) and apparently HP as well - according to McBride himself.

The question becomes then, who knew what, when and what did they agree to do? If their is collusion, then this whole things becomes one big antitrust steamroller that will take on the conspirators. Canopy is the SCO Group, so they are a part of this effort. MS? Yes, they are funding it, if even indirectly. Sun and HP (HP not confirmed - just stated by McBride) apparently as well.

That would place IBM's three biggest cosnpir.. err, I mean competitors in a scheme to dethrone IBM from taking the market away from them. If ANY of that could be found in documents anywhere - then "Katy, bar the door!"

IBM will go through discovery (unlike SCO) and they will go after whatever they can find. I think that the truth will all come out, and everyone will know what is what. Until then, look for the occasional slip-up or stupid blunder to reveal the truth. It does and will happen. They can't hide forever.

If HP joined in, that would be a bad thing. I like HP, but that would change my opinion of the company forever. I would not like to see that happen, but I have already been disappointed once (Sun). Now I await to see just whom will be the next big disappointment.

Eric Zayas 08/19/03 07:33:08 AM EDT

This is not the first time SCO has made unsubstantiated claims that it is the owner of Unix on the Intel platform. The big question however is, who is financing such a high profile case, since SCO does not have the capital to do this on its own? It is probably some company who feels threatened by Linux. My Stars (MS) I can't imagine who that might be.

Joel Jensen 08/14/03 01:03:39 PM EDT

The comments on end users not being restricted from using Linux (the comparrison of the books and music) are misleading and might be misinformed.

The EDA industry knows this well. A company named Avant! was sued by Cadence. The claim was code being stolen from Cadence when the founders of Avant! worked there. Avant! became one of the best in class for their product. If I remember correctly, Avant! was found guilty.

Between the time of initial filing and the court decision, Avant! created a totally new product. Once things were in court and a decision was made, notices were sent out to all customers requiring the "destruction" of the offending products. To give you an idea, even some error messages still had the same mispellings in them.

Once the code is replaced in linux, the end users might be required to replace the offending code and destroy all copies (including backups).

This is different than books and music.

Noel 08/14/03 12:49:18 PM EDT

SCO is SCO in name only. It was acquired by people with no interest or background in computing. They are a bunch of corporate raiders who go around buying companies where they believe that they can extort money by litigating IP claims. That is their MO, not developing anything. It is quite sad what has happened to the last custodian of UNIX, although perhaps Sun has that mantle now.

Rich Gibbs 08/13/03 02:37:17 PM EDT

"SCO can't just release the code for all to see however because open source developers will replace it. Because SCO needs to allow for legal analysis of the code which requires at least *some* disclosure ... the only thing SCO can do is negotiate in court for terms that allow the code to be made available for analysis with very strict limits on its disclosure."

But this argument is just plain nonsense. SCO says the infringing code is in Linux kernel 2.4.x, which SCO itself has released. So it is already generally available. That means it cannot be a trade secret any longer -- once the cat has been let out of the bag, it cannot be put back in. (SCO can still attempt to recover damages for revealing the secret from IBM, but they can't go after anyone else.)

If SCO owns the copyright to the so-called infringing code, revealing what that code is does not impair SCO's rights in the least.

The only conclusion I can come up with that is consistent with SCO's behavior is that they have essentially no case, and they know it.

Chuck Talk 08/13/03 12:03:14 PM EDT

Thus wrote Rick H:

"It seems possible that SCO may have a true gripe and may not want to show their cards due to the obvious changes that would be made to eliminate the code by the Open Source community. The IP that created the code might be masked in any Open Source replacement code that was inserted."

That argument does NOT hold water Rick. Changing the code does nothing to limit legal liability at all. That is the fallacy they want you to believe. Copyright infringement remains whteher or not ANY code is changed if you can show the example and it is significant.

By significant it has to be more than "init". The 80 lines or so that they were claiming and have been changed again according to the latest press releases. The real facts will come out, and I eagerly await the truth. Of course, this asumes that this wil ever hit the courts - which the SCO Group does not want.

There is no justification for not showing the code without an NDA. The violation would remain the same regardless. All they would need is to have the source samples of all of the kernels and prove that it exists there. That isn't that big of a deal for someone who is serious about a lawsuit.

It is only a big deal if you are not serious about the suit or just keep making up crud to suit your purposes. Speaking of which, the SCO Group is now infringing on the developers copyrights in the SCO Linux License. That will be their final undoing.

Rick H 08/13/03 11:44:04 AM EDT

It seems possible that SCO may have a true gripe and may not want to show their cards due to the obvious changes that would be made to eliminate the code by the Open Source community. The IP that created the code might be masked in any Open Source replacement code that was inserted.

Sam 08/13/03 08:14:45 AM EDT

Hi Chuck,
Quoting The Oracle Israel Market Manager:
Supposing you bought a "Mercedes" and they told you you have to take a course to drive one, Would you buy a Mercedes? The Computer Biz is not Client Orientated Enough,
It Is Big Suppliers Orientated, Linux is changing this!
(a little....)

Chuck Talk 08/13/03 08:07:36 AM EDT

I wholeheartedly agree the industry needs to grow up. However, you have to start with men who want to do business and not merely cash-out. That is the farthest thing from the minds in Lindon. They are litigious and seek to pump this ugly dog up in stock price valuation way beyond what it is worth. Talk about out of balance - SUNW is a way more valuable comapny than this pimple of a company, yet is is trading at $3 and change while the SCOX stock is near $9? Name ONE thing that SCOX invented. You can't because they can't. They never invented SQUAT other than the business model of lawsuit, lawsuit, lawsuit. No one forgives that behavior. It gets old and tiresome.

Sam 08/13/03 07:57:24 AM EDT

Unix and Linux should Work Together or DIE Together.
Same Goes to Open Source and Free Software.
This Industry needs to Grow Up at last!!!

Chuck Talk 08/12/03 03:37:55 PM EDT

Thus wrote Brian Clancey:

"I do not believe that this entirely true of software because the industry has been very successful in creating a body of law which states that you do not purchase software -- you only buy a limited ability to use the software. That right can be taken away at any time by the software vendor -- after which continued use of the software is completely illegal."

That WOULD be true in the Microsoftian world Brian, but in the GNU/Linux world the license says that this cannot happen to the end user. If you need to grasp that concept, I would suggest a quick read of the General Public License. Then, I would suggest that you go back and read the history and the statements of SCO need Caldera to understand why everyone is now very angry with their perversion of that license.

They have made a pact to betray their brother. In essence, they, like Judas Iscariot, have betrayed the community. Judas at least had the decency to commit suicide. He can be forgiven. These people are committing business suicide by attempting (former) fratricide and villification of their former family.

I wouldn't give them much of a chance unless they buy the jury pool in all of Utah (unlikely). They are full of lies and innuendo, but extremely short on fact.

They could still claim damage if they showed the code - because that would show an effort to mitigate damages. Trouble is, they don't want to do that at all. They want to run this stupid FUD campaign instead. That is all that this mess is.

Eric 08/11/03 12:46:05 PM EDT

If you want to find out just how wobbly the legs on SCO's case really is go to the following link below. There is some interesting information on a fellow who, while working for SCO on Linux/Unix integration, made some interesting contributions to the Linux kernel....


ed Martin 08/11/03 12:19:53 PM EDT

Hurray! This is the best news I've heard in months!

Brian Clancey 08/10/03 12:48:03 PM EDT

> If you buy a book or CD that illegally contains
> copyrighted material, legal liability remains with
> the manufacturer or distributor of the book or CD -- you
> as its consumer can continue to read or listen unmolested

I do not believe that this entirely true of software because the industry has been very successful in creating a body of law which states that you do not purchase software -- you only buy a limited ability to use the software. That right can be taken away at any time by the software vendor -- after which continued use of the software is completely illegal.

Paul Nowak 08/09/03 09:22:59 PM EDT

Excellent reference on the TORT.

Agree that replace the code is sufficient. At worst, anyone could fork Linux into a new OS and choose to move selected passages of code over from Linux and write new code where the choose to for performance or to avoid infringement as needed. SCO would have no possible claim to this new OS so "replace the code" is sufficient to eliminate SCO claims for liscensing purposes leaving SCO with a bone to pick only directly with IBM.

daniel wallace 08/09/03 06:04:13 PM EDT

Replace that code ...
Let us assume that since IBM has one of the largest most aggressive intellectual property divisions in the world that they are not complete fools.
Let us look at DEFENDANT IBM'S ANSWER TO AMENDED COMPLAINT at paragraphs 36 and 37 and we see:

36. Rather than particularize its allegations of misconduct by IBM andothers, SCO has obfuscated and altered its claims to foster fear, uncertainty and doubt about its rights and the righte others. In letters dated April 2,2003, and May 5, 2003, attached hereto as Exhibits M and N, respectively, IBM expressly asked SCO to advise IBM as to what SCO contends IBM has done in violation of any of its agreements, and what SCO contends IBM should do to cure such violations. SCO refused. In fact, SCO's counsel stated, in an interview with Maureen O'Gara of LinuxGram, that it "doesn't want IBM to know what they [SCO's substantive claims] are".

37. SCO has obfuscated its claims and has hidden its supposed evidence because the evidence does not demonstrate the breaches and violations that SCO has alleged. Moreover, key developers and influential leaders in the open-source comunity, including leaders of Linux kernel development, have stated publicly that they are prepared immediately to remove any allegedly offending material from the Linux kernel. Rather than permit remediation or mitigation of its alleged injuries (which are non-existent), SCO has declined to reveal the particulars of the alleged violations in order to artificially and improperly inflate the price of its stock.

Now let us look at RESTATEMENT (SECOND) of T ORTS :
§ 918. (1) Except as stated in Subsection (2), one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort.
(2) One is not prevented from recovering damages for a particular harm resulting from a tort if the tortfeasor intended the harm or was aware of it and was recklessly disregardful of it, unless the injured person with knowledge of the danger of the harm intentionally or heedlessly failed to protect his own interests.

Copyright disputes are subject to Federal Law and Rules. It is well settled in every Federal Circuit that the doctrine of "avoidable consequences" is applicable to damages (not liability). In egregious cases complaints have even been dismissed.

IANAL but I believe that SCO has been cooking it's own goose since the day requests were made to be shown the offending code so that it might be removed.

Marc St-Jacques 08/08/03 05:30:39 PM EDT

"They can't prove their claim because they can't disclose code, because to do so would cause that code to be replaced."

This is misleading. IANAL but although offending code can be replaced in a flash, it is still offending code under current copyright laws.

We can date every inception of the Linux kernel and can provide the court with a copy from each of them. If a judge finds the SCO claims to be acceptable, Red Hat, IBM and other are liable for the code they distributed during that period of time, whether or not the code is replaced afterwards.

As a measure of punishment, this judge may even pass judgment on the future of this code, perhaps hampering any attempt from open source developpers to simply replace the code as if nothing happened or at least to prevent *commercial* distributions to do so - those who use Linux for free obviously don't care, but this would change the business side of Linux for good.

This doesn't mean that the SCO claims are correct. It just means that in terms of copyright law, the "Ooops! I'm sorry. Here, let me patch / replace this." argument is not an acceptable defense.

Craig Goodrich 08/08/03 02:52:38 PM EDT

The author forgets an important point (or has bought the SCO silliness on the topic): Even if some substantial copyright infringement is present in Linux (and it isn't likely to be, for reasons pointed out by inter alia the OSI), the *user* of the software bears no liability: If you buy a book or CD that illegally contains copyrighted
material, legal liability remains with the manufacturer or distributor of the book or CD -- you as its consumer can continue to read or listen unmolested.

SCO's threats are pure mendacious FUD, and leave them open to such legal action as the RedHat suit.

SCO is toast.


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