SCOs Position on the
NDA"> Gerhardt contends SCO has no intention of disclosing the code. If it did, the open-source community could refute SCOs claims that its Unix code was illegally incorporated into Linux, and thus there would be no basis for SCOs $3 billion lawsuit against IBM and its threats to sue Linux users for damages, he said. SCO Senior Vice President Chris Sontag said that while it could possibly address the issue of letting people see the Unix Source V code under a less-restrictive NDA, there is a certain level of NDA that has to be in place, and it might not be possible to come to an agreement.But given the furor that erupted after Sontag showed a snippet of the alleged copied Unix System V code in Linux last week, SCO is unlikely to ease the NDA terms soon. After Sontag showed the code at the SCO Forum, experts such as Bruce Perens, an open-source evangelist and former senior Linux and open-source strategist for Hewlett-Packard Co., told eWEEK that the code was copyrighted by AT&T Corp., whose Unix rights were later transferred to SCO, but also released under the BSD (Berkeley Software Distribution) license, which would allow it to be included in Linux. Torvalds said the code SCO showed represents an algorithm that can be used to manage a computers memory, is 30 years old and has been documented several times. "The piece of code ... had already been removed in [Linux Kernel] 2.6.x, and not because of copyright issues, but because developers complained about how ugly it was," Torvalds said. "What I find interesting is how it shows that the SCO people are having such a hard time with the truth. Theyve said several times that the code they have found is not historic Unix code and not BSD code. ... Theyve claimed several times how its modern System V code that they have clear ownership of. Thats despite massive proof to the contrary, going back three decades." "Until this comes to court, its really going to be their word against ours," said SCO Director Blake Stowell. Mark Heise, a partner at Boies, Schiller & Flexner LLP, the primary law firm representing SCO, maintains that even if removing the offending code is a workable solution, that would only resolve the issue on a going-forward basis and would do nothing to address the fact that the infringing material has been in Linux since 2001. "Millions of servers have been using it, and I havent heard anybody talking about what to do about the past infringements and how we will be compensated," Heise said. "The GPL states that violators of that license are terminated from distribution and use until any issue is resolved. Would the Linux distribution stop shipping until any such fix was implemented?" The legal rhetoric has not diminished interest in Unix or Linux, some users say. Boyd Gerber, CEO of professional services and consulting group Zenez, in Midvale, Utah, said his Linux customers are adopting a wait-and-see attitude. "Customers are still looking for the best solution to meet their needs. For those who want to use lower-cost hardware, the SCO Unix solution is still attractive," Gerber said.
"But there are lots of derivative code that IBM has contributed. That is identified and visible today, and you dont need an NDA to be aware of it," Sontag said. "The community should start by removing all of that and removing all knowledge they had of that code and not use any of it in any form to develop a successor for it. They can start work on that right now."