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SCO Code to be Protected in Closed Court
An anonymous reader writes "SCO public relations director Blake Stowell today said that the company had secured permission to present the code alleged to have found its way into Linux to a closed court. Once again SCO is refusing to tell Linux users just what code they claim is infringing on their IP rights, while still threatening to sue corporations running Linux."
If they are proved to be wrong, the code will come out anyway.
If they are right, their valuable source code will be released on the internet and lose all its value if it is open court.
A court case shouldn't be allowed to trample over people's rights. It's quite normal for commercially secretive cases to be held in camera (but only for the sensitive bits) - such as trade secrets, and other similar issues.
I'm just quoting from memory, but an old press release said something like,
"Open source leaders have refused to take action [and remove the code]".
And then a few sentences later,
"We don't want them to take out the code because then we can't sue them".
Stupid bitches.
"We can't just open this up to the public. The minute we open it up we have in fact opened it up to the public and we can't restrict it in the future from a proprietary standpoint," said SCO CEO Darl McBride at conference in August this year.
The fact that I have seen your code does not make it part of the public domain. This is just silly.
"We can't just open this up to the public. The minute we open it up we have in fact opened it up to the public and we can't restrict it in the future from a proprietary standpoint," said SCO CEO Darl McBride at conference in August this year. "
Besides which, this claim makes no sense -- letting people see the code doesn't give people the right to use the code -- SCO would still have the copyright on anything that they wrote (or, to be more accurate, bought the rights to). That's like arguing that you can't publish books because people could read them and publish copies.
Enable 3D printed prosthetics!
As several sources, including Bruce Perens' fine analysis of code fragments thus far disclosed, have indicated, some of what SCO is claiming as their IP in fact stems from material that were in the public domain as far back as the 70's. If this can be established beyond the shadow of a doubt in court, then they should have no right to keep private that which is already public and the codes can ultimately be disclosed.
It's somewhat similar to my attempting to keep the contents of "Encyclopaedia Brittanica" secret by claiming IP rights, only to realize later that I never owned it, do not own it, and will never own it. Therefore, I would have no right to keep it confidential since my original claim of ownership is debunked.
What really blows me away about this whole debacle is the value of SCOX. At around $15/share, this same time last year it was only a few bucks per share. Someone's buying this crap and someone's going to get raped. People better check to see their mutual fund managers aren't taking them for a ride. All these shady court arrangements are only prolonging the inevitable decline of SCO, and when that happens a lot of people are going to lose a lot of money. I hope the SEC is looking into the stock dealings.
Judge Damon J. Keith, in the Cincinnati ruling, opined that "Democracies die behind closed doors."
Little surprise, Darl figures SCO will survive behind closed doors.
And it is true that SCO will survive only as long as it is behind closed doors. Open the doors, let the light shine, and let people pore over the code .... SCO is then as good as dead ....
To see a world in a grain of sand, and then to step back and see the beach where the sand lies
Under the terms of discovery, the discloser may
label certain parts "confidential." If challenged
the onus is on the discloser to justify the
confidentiality.
The transcript of the court session is public and
this standard protective order is the only thing
mentioned. I am quite certain there was no
further side-deal with the magistrate.
While I would not put it past SCO to label
everything confidential, that would be an abuse
of the process. I doubt the magistrate would
allow it.
Stowell's announcement is just SCO's usual
disingeniuty in reporting the facts. Remember
that this is the person who claimed the judge
"flipped a coin" in deciding to rule in favour of
IBM's motion to compel discovery.
If they do in fact have code which is protected by copyright, then they have nothing to fear. Copyright still protects things that have been seen by the public -- it's called publication. It seems to me that the only reason copyright exists in the first place is to encourage people to publish their works by allowing them to still own a work once it is in the open.
If, on the other hand, SCO believes that it's control over the code is only based on its status as a trade secret, then they have no recourse against the Linux community, only (theoretically) IBM. Keeping any infringing code secret wouldn't help.
It seems to me that there are only a few possible reasons that SCO wants to keep all this secret, which are unrelated to their stated reasons:
1) They need Linux to continue infringing as long as possible. My guess is that the length of infringement, which will stop 24 hours or so after public disclosure, will directly affect any increase the damages paid by IBM.
2) They want to catch IBM in a contempt of court charge. If the code is sealed by the court, and it becomes suddenly removed before being made public, then SCO can say that IBM leaked information, and so is in contempt of the secrecy order. This makes IBM look very bad, and gives SCO a strong argument that IBM has clearly shown itself to be untrustworthy with information. It's an interesting gambit, relying on the fact that the information will need to be widely available within IBM for its defense, and bets that at least one of those people will spill the beans.
3) They have no idea who actually contributed the code in question. If they open it up to the public, there's always the possibility that some expert in the field will stand up and say, "No, I wrote that code, not IBM, and I have never seen SCO's code". Opening the code suddenly gives IBM a very large army of people who will study and scour the code SCO releases to find any evidence in IBM's favor whatsoever. With it secret, the burden is entirely on IBM, and so the process will take longer and evidence may be missed. This also plays into #2 above.
4) There is no code. SCO's allegations have been a delicate web of half-truths and bravado, exposure of which will mean certain death to the company. It will lose its case, it will not be purchased, and its lawyers will not be paid.
According to the lawyer who gave a lecture about intellectual property rights, patents and trade secrets etc., trade secrets have no protection. If you can develop the formula for Coca Cola on your own, they can't stop you from selling it, as long as you don't infringe on their copyrights or trademarks. There is also a chance that someone could patent it before you do if they develop it around the same time, in which case you could be infringing on a patent if you can't prove you came up with the idea on your own.
goates
" 24 hours after the data is released there will be a new Linux distribution with the fragments eliminated."
Code shouldn't be necessarily removed, for2 reasons:
1) It can turn out that whatever they show was coming from a common source (BSD) or was already public knowledge.
2) Even if it turns out, that the code in Linux derives from SCO's SystemV code, we shouldn't abandon the issues with the GPL. Of course, they would plead ignorance, but I believe it would be difficult to convince the judge given their one time slogan of 'bringing unix and linux closer' - or something like that. Not to mention their LKP and already known contributions to the linux kernel.
The difficult part of this decicion is that yes, you can clear out any code that SCO claims is infringing, but doing so, you acknowledge that there was merit to their claims, and you also acknowledge a weakness in the GPL. SCO used the work of thousands of developers when making money selling linux under the GPL. They should not get off that easily (oh, but we didn't know! what? didn't read the licence? didn't know what your employees were doing? didn't know what you were selling?)
In lawsuits in federal district courts (and most state courts as well), the rules of discovery provide that opposing parties can get the other side to produce any information that is "reasonably calculated to lead to the discovery of relevant, admissible evidence." Federal Rule of Civil Procedure (FRCP) 26(b)(1). This means that litigants have some leeway. They are not limited to asking for evidence that is admissible in court but rather can get ANY information that would LEAD to the discovery of admissible evidence. In other words, litigants do not get free, unfettered access to each others' files, but can go on limited "fishing expeditions" so long as they can show that they have some reasonable expectation of finding fish where they are fishing.
That said, assume (as the judge must at this stage of the litigation) that SCO actually does have some trade secret or confidentiality interests to protect in its source code. That secret or confidential status would be forever lost if disclosed to the world. SCO should not lose any valid rights it has simply because it sued to enforce those rights. (Take it easy flamers - we're making assumptions here still - keep reading!).
Obviously there are tensions among the right of a party to get information from an adversary to defend itself, the right of an opposing party to protect its trade secrets or confidential information, and the public's right to have judicial proceedings in the open. The Federal Rules of Civil Procedure balance these interests in Rule 26(c) which proivides for protective orders. Such orders are issued to keep confidential information from becoming public. There are several features which ensure that the use of such orders is not too problematic:
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The material produced under such an order must still be produced to the other side (and potentially the court if the litigation goes that far. In this case, I think everyone agrees that IBM has a substantial interest in gettin gthe information to defend itself. I also think most Slashdot readers would agree that in this case, IBM's interests are closely aligned with those of the Open Source community.
- The information claimed to be confidential must actually be confidential. That means that information which is not truly confidential cannot be made confidential because a party produces the information under the terms of a protective order.
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The judge is free to reveal anything he determines is not confidential. A protective order is called an interlocutory order, meaning that it is one of those types of orders issued to keep the suit moving forward and does not finally determine the rights of the parties. Basically, it is the way the Court manages litigation. Because these orders do not (usually) determine the rights of parties, the judge is free to modify or revoke those orders at any time.
Now for all those who want desperately to see SCO's source code, I ask this: WHY do you want to see it so badly? If you enjoy reading source so much that you just HAVE to see SCO's code, then I suggest you sign SCO's nondisclosure and get it. If however, you want to do your own comparison to Linux code, then I submit that the community as a whole has no need to see what SCO has. IBM will adequately protect the community becuse its interests are so closely aligned with those of the community. If your burning desire to do a comparison is to prove that SCO's claims have no merit, again, IBM will do this job just fine. Sit back, be patient, and trust that IBM will defend itself (and the community) vigorously.Laws affecting technology will always be bad until enough techies become lawyers.