LAS VEGAS—Members of the open-source community have approached The SCO Group with a proposal that they hope will allow them to look at the alleged offending Unix code in the Linux kernel either without or under a less restrictive non-disclosure agreement.
SCO has said that no one can see its Unix code without signing an NDA agreement that will protect its intellectual property rights. But many in the open-source community say the NDA is unreasonable and far too restrictive in its current form.
“The current NDA is completely unreasonable and will prejudice the ability of any of us to do our job going forward if we sign it. We feel that SCO needs to be reasonable about granting access to the offending code.
“But the open-source and Linux community also needs to be reasonable, so while we feel the evidence overwhelmingly supports our stance that Linux is not an unauthorized derivative of Unix, we want to be able to look at the offending code without prejudicing our future careers and so that we can remove any offending code, even if that is a million lines,” Jeff Gerhardt, an active member of the community told eWEEK on Monday.
He also handed out copies of an e-mail message from Linux luminary Eric Raymond, the president of the Open Source Initiative, which was sent to Gerhardt on Monday and in which Raymond said that if there was infringing code in the Linux kernel, “our community wants no part of it and will remove it.
“We challenge SCO to specify exactly what code it believes to be infringing….only with that disclosure can we begin the process of remedying any breach that may exist….if SCO is willing to take the honest, cooperative path forward, so are we. If it is not, let the record show that we tried before resorting to more confrontational means of defending our community against predation,” the e-mail said.
Gerhardt also made the suggestion of a less restrictive NDA at a media question-and-answer session with SCO CEO Darl McBride and other SCO executives, with whom he will meet on Tuesday to discuss the proposal further.
At that Q&A session, SCO Senior Vice President Chris Sontag said there are millions of lines of offending code involved and that its highly unlikely the matter could be resolved by removing that code.
McBride also spent a lot of time fielding questions about the recent lawsuits brought against it by IBM and Red Hat. Regarding IBMs suit, he said that Big Blue was more “complaining than filing a valid legal claim.”
McBride also found it interesting that IBM had brought up the issue of the GPL (GNU General Public License) in its filing, and said that SCO was “more than happy to go into court and take it on,” he said.
Mark Heise, a partner at Boies, Schiller & Flexner LLP, the primary law firm representing SCO, said that he found it interesting that with all its patents, IBM was arguing for open source. “We believe that any GPL claim by IBM is pre-empted by Federal Copyright law and are very comfortable with our position on that,” he said.
Behind Red Hats Suit
Turning to Red Hats pre-emptive suit, McBride said he was surprised when that happened. He had talked to Red Hat CEO Matthew Szulik just a few days before that action was filed. The two had talked for a long time over the phone, and Szulik had told McBride he was glad they had talked and were communicating. A few days later they filed suit.
“I decided to take my family to Hawaii for a couple of weeks break after all the madness of the last few months. What could happen in early August, I thought. Someone must have tipped IBM and Red Hat off, because no sooner had I left on vacation than they filed suit,” he quipped.
McBride and Sontag also reiterated that SCO had the right to, and would, go after companies using Linux and demand that they correct the problem. The way Linux was set up, all the liabilities rested with the user and not the vendor, they said.
“Users could thus move to another platform with compliant IP, stop using the 2.4 Linux kernel and beyond, pay SCO a license fee to bring them into compliance, or face legal action and possible statutory damages,” he said.
But Linux vendors like SuSE and Red Hat, as well as IBM, the Free Software Foundation, and the Open Source Development Lab, have all disputed SCOs claims and are telling Linux users that they see no reason for them to pay for a SCO license.
But SCOs McBride said that there are two companies he has no intention of going after: Hewlett-Packard Co. and Sun Microsystems Inc. “We have no problems with Sun and HP with regards to infringement as both have honored the conditions of their Unix license contracts and operated within these,” he said.