SCO Starts to Show Its Cards

 
 
By Steven Vaughan-Nichols  |  Posted 2005-11-01
 
 
 

SCO finally revealed to the U.S. District Court in Salt Lake City some of what it claims IBM stole from its Unix intellectual property and placed into Linux last Friday, but there is still no smoking gun.

The SCO Group Inc. did not, however, reveal any of the specifics of these violations in public.

Instead, the Lindon, Utah-companys five-page "Interim Disclosure of Material Misused" claims to have identified 217 areas in which IBM, or its subsidiary Sequent, violated its Unix licensing contracts. SCO, however, did not publicly reveal any specific details of these violations.

These details are hidden away in a court-sealed appendix to the disclosure. This appendix, according to SCO, consists of a spreadsheet and associated notes.

In the disclosure, SCO claimed "to identify the technology that has been improperly disclosed, where possible who made the disclosure, and the manner in which the disclosure was made, the location of the technology in a Unix derivative, or modified product in which SCO claims proprietary rights, and the manner in which the disclosure has been contributed to Linux."

These claims are detailed in "several thousand pages of materials" in the appendix.

This indicates, SCOs lawyers said, "the numerosity and substantiality of the disclosures reflects the pervasive extent and sustained degree as to which IBM disclosed methods, concepts, and in many places, literal code, from Unix-derived technologies in order to enhance the ability of Linux to be used as a scalable and reliable operating system for business and as an alternative to proprietary Unix systems such as those licensed by SCO and others."

Michael Graham, a partner at the IP specialist law firm Marshall, Gerstein & Borun LLP, however, says he wonders if the sheer volume of SCOs response is an attempt to say, "theres so much material in here there must be something bad in here."

Click here to read more from columnist Steven J. Vaughan-Nichols about the SCO legal battles.

If so, he said he thinks its a tactic that will backfire. "If they had done this early on, it might have counted for then."

"My feeling is that Kimball has been overly patient with them," said Graham.

"Now, finally, they are producing some of this material, but its surprising that in the disclosures description that the emphasis is on concepts rather than code."

Indeed, "It struck me as more of a patent filing rather than copyright. Methods and concepts are not protectable under copyright," said Graham. And, in any case, SCO has never made any patent claims in its case against IBM.

According to SCO, this is only the beginning. The company is continuing to review the materials it has received from IBM for other violations.

However, Pamela Jones, editor of Groklaw, stated that if there was any "infringing literal code, there is absolutely no reason not to show it without seal, because if its literal, its out there in the public already. All Linux code is freely viewable by anyone on Planet Earth."

Graham agreed. "There may be a contractual violation here, but copyright? To the extent that if there is was a copyright violation here, not making it public, is surprising."

Jones speculated that "SCO may be afraid the Linux community will pull the rug out from under them before they can get to trial, if they tell us publicly what they think they have."

It is true, that this is not the first time that SCO has claimed to have proof of Unix IP violations.

For example, in 2003, SCO sent out a letter to thousands of businesses claiming to identify SCO copyrighted Unix code in Linux, and it cited specific examples.

However, open-source experts quickly pointed out that these "violations" were in fact "pretty much all macros and declarations forced by POSIX and other technical standards."

Be that as it may, SCO will have until Dec. 22 to gather up more examples of violations.

After that, if Judge Dale A. Kimball doesnt dismiss the case for lack of evidence, the case is scheduled to go to trial on Feb. 26, 2007.

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