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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."
... who can modify the kernel, if needed. At least someone getts to peek ...
what if IBM (or some sneaky intern who works there) records a list of (linux kernel) line numbers for us?
Let's get drunk and delete production data!
I believe that's their point. A judge is hardly technically qualified to determine whether something is a derivative work, much less analyze the lifeline of the code in question. Avoiding the technical experts gives them their only fighting chance.
-j
The fact that IBM's lawyers will be there, too, perhaps?
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.
So far, SCO is only engaging in vague threats about future action. They haven't actually sued anybody over Linux-related copyright issues. Yes, that's still scummy, but until they actually do something, it's just a nuisance. I suppose someone like Redhat could sue them for business damages, but that's it, AFAIK.
Let's just wait and see if they try any specific threats without letting us know what code they think is in violation.
What is SCO protecting?? Every package in thier distro is an open source package.
I dont understand the need for secrecy, the issue here I thought was whether or not IBM copied code into the linux kernal... the kernal source code is freely availble to anyone who wishes to view it. What is secret about thier code exactly??
Another SCO FUD tactic... wont someone just buy them and close the doors to this forever??
A crock. This reminds me of the only DUI case in US history whose records are sealed, as far as I know - Ted Kennedy's Chappaquiddick disaster. What could possibly be the point of sealing code that is already open & public - that is SCO's point, right? They're just prolonging the FUD as long as they can. When you're rich & have good lawyers, there's no pretense that the legal system works - instead, it's worked.
Then it's just a matter of whether it's worth it to keep fighting for the right to use the existing code and the scope of SCO's rights in anything. But on a going-forward basis, at least Linux can become SCO-free.
"Ahh yes lots of { and } and 'if' in both sets of code, i find in favour of SCO."
Just a thought.
Not only is it normal, but I imagine if the magistrate initially opened the court up, it could lead to a charge of prejudice and a reversible error on appeal.
The court does not get a copy of discovery materials. They only see what the parties choose to submit into evidence. However, the next hearing will likely discuss that evidence in enough detail that, unfortunately, it makes sense for the hearing to be closed.
I suppose that IBM could move to have the transcript released if they can claim that there was nothing covered under the protective order discussed. And, particularly given that Kevin McBride admitted in court the last time that they have no evidence from Sys V and that they don't have a copy of AIX, I would imagine that any evidence SCO submits will only come from Linux and that it would then be easy for IBM to argue for opening the transcript.
This reminds me of the only DUI case in US history whose records are sealed, as far as I know - Ted Kennedy's Chappaquiddick disaster.
Umm...are you forgetting this one?
A lot of politicians have had their records sealed.
Look at my karma - I'm bad, just like Michael Jackson!
First they are claiming that EVERYONE has seen their code. Now they are preventing those same people from seeing what they already have. Isn't this an admission there is nothing to see?
In other words, because of the openness of Linux, their code is already available to anyone. They have nothing to gain by keeping it secret now UNLESS it has always been secret.
Why have 1 person driving a backhoe when you could employ 20 with shovels?
IBM could just publish a listing of the code which is not in dispute.
"No your honor, we didn't release the code SCO said was copied into Linux. We just released a listing of what SCO says isn't theirs. Surely that isn't secret..."
More likely that the judge gave permission for the code to be presented in a closed court, but can later be opened.
I am guessing that SCO wants to refer to something else here so wants the closed court to hide whatever else they are up to.
I prefer the "u" in honour as it seems to be missing these days.
In way this makes sense - SCO should not have to show its source code to compare with the alleged infringing linux code. On the other hand, *if* they win and*if* the infringing code is removed from the linux source, a simplecomparison of the pre and post source will clearly show the infringing code.
I think the crux of the agrument to reveal this in closed court is to avoid SCO having to show its code in public. They should have the right to keep their source "closed".
Don't get me wrong - I think Darl and Co are all smoking crack -but they should be allowed to retain the rights to propietary source code.
Going on means going far
Going far means returning
That's not true. Courts have ruled, routinely, that the full version of a long contract that cannot be displayed at time of purchase may be included along with delivery. Generally, if this requires the consumer to waive rights, then the consumer is entitled to a refund if s/he does not agree with the new terms in the EULA.
However, EULAs in general are NOT illegal, for the simple matter that they wouldn't FIT on the outside of the box.
-Looking for a job as a materials chemist or multivariat
is to prove 'infringement', and then force the code to remain in Linux. The 'infringing' code is already public knowledge, but they have made the very important step of tricking the judge into protecting the secrecy of something that widely distributed and still available to anyone. This logically implies that the same judge will force the 'secret' to be kept if and when he/she rules on the side of SCO. If IBM can't publically disclose what the infringing code, they are hard pressed to remove and replace it, and forced to leave the infringing code in. With a judgment that Linux is infringing, SCO gains massive leverage to charge anything they want to for someone else's OS.
IBM releases an "update" to the Linux kernel, which does not include any of the SCO code. They are going out of their way to avoid hurting SCO, because their release of Linux has removed any SCO code they don't want the public to see. They don't tell anyone what SCO's code is directly, but instead release a derivative work of legitimate GPL code, using only legitimate GPL code and not SCO code that SCO doesn't want revealed.
Of course, this is demonstration by absence. However, since Linux already exists in the open, the code SCO is not talking about is not secret except in the fact that no one knows what they are claiming.
I find this arguement very interesting:
"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.
What is he refering to by "open this up"? If it's code in the Linux kernel, it's already open in the sense of having been seen. If they have any LEGITIMATE claims, it is NOT "opened up" in the sense of everyone being able to use it. The only thing they would "open up" would be how we can get their crap (if any) out of the kernel, and if they're going to try to make proprietary arguments on THAT basis either they are totally out of our minds or our IP related laws in the country have utterly failed. I can't believe the judge didn't ask them to explain how code already in the public eye as part of the Linux kernel can possibly be further harmed by identification, and how they expect to make money off of not identifying it publicly. The only possible answer is a study in absurdity. I want to hear them say "If we let any knowledge out of how to remove our code, we won't be able to try and force Linux users to pay us for future versions" in front of a judge.
I suppose the court isn't able or required to look into the business model of SCO, but come on.
If this nonsense drags on long enough, I say we put an intense concentration of effort into EROS, make it functional at or near the Linux level with it's advanced concepts in place, and introduce the world to a whole new scale of OS security and robustness, and make them wish they had never even heard of the Linux kernel. Maybe IBM would be willing to back such an effort - they developed some of the original ideas behind it, and by now they probably appreciate open source's potential or they would have abandoned it. They say a good fighter never hits where the opponent is expecting the punch, and that would sure be a pretty KO bunch for SCO.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
Anyone want to lend Linus a couple of lawyers so he can sue SCO for tarnishing his trademark? A C&D preventing SCO from mentioning Linux in their press releases might put a hitch in Darls giddyup.
--
E_NOSIG
What could possibly be the point of sealing code that is already open & public - that is SCO's point, right?
Maybe they're trying to make the Linux advocates look like fools.
Seriously, I don't understand why we're biting. Maybe someone from IBM took SCO code and put it in Linux. It's not at all unreasonable to believe that.
"SCO characterises the licenses as a source of 'immunity' from future intellectual property claims."
If I were to say "I own a lot of code in Microsoft's OS" and then offer a license to Windows users offering "immunity" from me suing them, and all the while not revealing any evidence in order to prevent Microsoft or the users from eliminating the components I say are causing them to owe me $$, how would that be looked upon by the press and the courts? What if I generated a lot of press saying:
"My ancient DOS code is the core of Windows! End users should pay me a license fee or face lawsuits!"
"I can't reveal why my code justifies this demand or what it is since that would damage my ability to leverage my IP."
"Microsoft cannot release a patch or update to resolve this issue - the code is too deeply entrenched. Plus, the rest of Windows is a derivative work, including things like NTFS."
The responses would be a) Windows is at fault, not the End Users and b) No tikee, no laundry. Show evidence or booted out the court door. Now, this is what SCO is doing to Linux, but somehow the fact that the author's price for Linux is $0 makes the End Users responsible????? What makes $0 special as opposed to $X? Why are End Users suddenly no longer as innocent in Linux as they are in Windows?
Oh, and now apparently acting decently and acting in good faith are now liabilities. Allowing someone a chance to fix a problem or a mistake is against corporate policy since it's more profitable to try and make them pay through the nose for it for eternity. Oh, and make anyone who benefits from that mistake, however unknowingly, also pay. Yay corporatism.
This whole thing is a crock. The saying "No good deed ever goes unpunished" certainly seems to be true for the open source community. But of course, "good deeds" are a threat to commercial suppliers of helpful services and products, and therefore are no part of a proper capitalistic system. Lord, what a messed up world we (or at least SCO) live in.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
It is my understanding that this is one risk of "trade secret". If someone develops something the same time as you, but independently ('course, there could be issues of determining independence), then you don't have any claim to the idea because you did not disclose it. This is one aspect of patents, actually: you are making some technology public, but the patent gives you exclusive rights for the patent term. You are trading public knowledge for exclusive use. If I develop some widget in my basement, and some guy on the other side of the country does the same and we both sell it without protecting the idea, we don't have any mechanism for protection.
The fact that SCO is claiming "trade secret" could possibly be an advantage: "Hey folks, well their code was secret so we had to come up with our own way to do it, and we did. But since it was math, there was only really one way to do it, so it looks the same." (This you might be able to prove by giving 6 people some differential equations and having them solve it - my guess is they will all arrive at the same answer (if they know what they're doing, at any rate)).
So, in summary, do "trade secrets" have any protection if they are not stolen? If I make a competing technology for one that is a "trade secret" that does the same thing but without copying the guts, is there any grounds on which the offended party may seek damanges? Is that not part of the risk of keeping an idea "secret"?
"There are a dozen opinions on a matter until you know the truth. Then there is only one." - CS Lewis (paraprhase)
Right think about it from the point of view of the court. A request to present evidence in closed court will almost always be granted - unless it appears completely frivolous. Publishing is irreversible, evidence presented in closed court can always be released later.
Once SCO has stated with specificity the fragments of code that it claims are stolen IBM will get the chance to argue that they should be made public. They have a very strong claim here since the basis of SCO's claim is that the code has been stolen and included in Linux and is therefore public.
IBM can very fairly claim that their ability to defend the case would be unfairly harmed by keeping the code fragments secret. There is no way they can approach the community to ask for information with a bearing on the case.
There is also the issue of failure to mitigate damages. It is very clear that any allegedly infringing code will be replaced as soon as SCO states the code in question. I don't see how the court could order IBM not to use the evidence provided by SCO to end the alleged infringement. That would be illogical.
I expect that once SCO has shown the code there will be a rulling to make some of the information available, at a minimum the corresponding Linux fragments that are alleged to infringe. The rulling will then be appealed to the apeals court which will kick it down promptly. 24 hours after the data is released there will be a new Linux distribution with the fragments eliminated.
At that point SCO's potential damages will sink to a few tens of millions at best, most likely negligible. The SCO stock price will collapse and there wont be enough money to keep the case going. IBM then buy SCO at discount prices out of Chapter 11 to avoid further littigation from the next bucket shop to buy the rights. UNIXWare is made open sauce. Cheney is impeached for helping Haliburton's war profiteering, the Red Sox win the world series, pigs fly and Commander Taco fixes the slashdot code to warn editors of imminent dupes.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
Well, that's a pretty wide net. For example, take one from the middle of the list: Ralph J. Yarro III.
A google search turns up this, which mentions all these associations:
Ralph also servers as Chairman of the Board of Trustees of Angel Partners, a 501(c)3 support organization for the Church of Jesus Christ of Latter-Day Saints. He is also a Trustee for the Noorda Family Trust, the Scenic View Center, and the Worth of a Soul Foundation. He is the Chairman of the Board of Directors of Altiris, AP Software, Caldera Systems, Center 7, Coresoft, and Helius. He sits on the Board of Directors for: the Canopy Group, 2NetFX, Arcanvs, Cogito, DataCrystal, Expressware, Global Prime, The Guy Store, HomePipeLine, iBase Systems, Interworks, Lineo, MTI, ManageMyMoney, Nombas, Profit Pro, Recruit Search, Troll Tech and TugNut.
Of course it's easy to avoid giving money to the Mormon church (well, unless you're Mormon, I suppose) but who knows what subsidiary of one of these other companies you might be dealing with.
Still, I suppose you can avoid dealing directly with these people and still produce a tangible effect.
You can't have it both ways. You allow the code to be used, or you say "this is mine, get your own!"
Jeez, only in Amerika, can you threaten legal action against someone and not have to tell them what law was broken. What happened to simple cease and desist? "This is my code and you have 30 days to stop using my IP."
Fortunately the burden of proof lies on SCO in this case. They have to prove that UNIX is a trade secret (very hard since the code was made public at one time), they have to prove that the trade secret was in fact disclosed, they have to prove that the Linux code was created by someone subject to a duty of non-disclosure. They have to somehow get arround the fact that SCO itself disclosed Linux under the GPL.
Then they have to persuade a judge that the most equitable form of relief would be to give SCO effective interest in the whole of Linux, including the parts they did not create.
I do not believe that there is any theory of equitable relief that is going to give SCO what it is seeking - effectively a royalty on the work of others.
Sco's trade secrets malarkey is bogus because every littigant knows that bringing an action on a trade secrets issue is likely to result in disclosure of the material at issue. Trade secrets are a weak form of IP protection, Copyrights, patents and trademarks were created as a means of creating strong protections.
Looking for an Information Security student project suggestion?
Try http://dotcrimeManifesto.com/
Lets file a class action law suit agains SCO. They are threating us with no proof. I would guess the EFF might be intrested in this.
I didn't use the preview button, so get over it!!!!
Mike
Board of Directors for... Lineo
Isn't that a conflict of interest?
It's worse than that. If they pay the license fee they lose their rights to copy, modify and distribute Linux under the GPL, since the GPL is incompatible with SCO's demands. In essence, paying SCO violates the copyright of all of the other contributors to Linux.
IMHO, Linux contributors should be bringing suit against SCO and against anyone who pays SCO their "license fee." It would be nice to see anyone agreeing to SCO's promise not to be sued end up in court over copyright violations.
Support SETI@home
So Ralph J. Yarro III is a member of both.
Doesn't that mean that we should get rid of Qt in all open souce projects?
Maybe it'd be a good idea to not only avoid "business" with SCO and their boardmembers but even any business related to the other companies whos boards they occupy.
k2r
but I don't see SCO filing false claims.
Then you obviously have not been following this over the last few months. Lessee, first it was suing IBM over contract violations, then it was offending code in Linux but we won't sue Red Hat, then we are suing everyone who uses Linux and especially Red Hat, etc. etc.
In addition, they have contradicted themselves sooo many times in public statements that I am sure no one can keep this straight from the public record. I can easily see SCO filing false claims just from confusion over their own statements!
The term for what you're describing is misappropriation. A misappropriated trade secret is still considered secret and anyone that uses it is committing a crime. At least that was the theory before cases like DeCSS and Verance/SDMI/Felten where the trade secret holders are desperately trying to apply the old rules to the international internet.
The key cases on the misappropriation doctrine seems to be E. I. DuPont de Nemours Powder Co. v. Masland where a competitor took aerial photos of a chemical plant & claimed it was reverse engineering. The reasonableness of a measure to discover inner workings was at issue.
It's still a wierd area. Printed circuit board layouts can be copyrighted but you can look at one, extract a schematic and lay out your own board. The circuit design could receive patent protection, but not trade secret protection.
ObLink
I ask this: WHY do you want to see it so badly?
So that the offending code, if present, can be removed from my systems and be replaced with something I have a license to. I can't do that without knowing what sections of code (if any) are infringing SCO's rights.
Edith Keeler Must Die
After all, the AT&T vs BSD case was sealed, too.
"I might have made a tactical error in not going to a physician for 20 years." -- Warren Zevon
Actually, they did it in their amended complaint. This is also the reason why the aquired copyright registration from the Copyright Office.
It is not the reason, though, why they want to keep code out of the public eye since you do not you copyrights from public disclosuer (duh.)
"Subsequent remedial measures" are not admissible as evidence of culpable conduct in any Federal court. Besides, if there is a question about whether code is legal, the most reasonable thing to do is to simply remove the code. It doesn't mean that you are admitting anything. It just means that you don't know and you are being smart.
The decision whether to remove code should be made based on what is best for the users and developers.
True, SCO should not get off that easy. Copyright law is strict. It doesn't matter if SCO didn't know... but that also applies to people running Linux. If there is infringing code in there, they could be liable even if they didn't know about it.
Exposing millions of innocent people to potential litigation is not something that should be done merely for principle's sake... if you can prove the code came from BSD or elsewhere (or was donated by SCO), then by all means, prove it in court... but if you don't know, you go ahead and replace the code to minimize the damage.
It stinks when a company uses the
legal system to its own dishonest ends!
Seems that SCO continues to use the legal system as a way of
spreading FUD. If this had been a "normal" case, the court's
ruling acts to protect SCO in the event that it proves itself
correct. Should SCO publicly reveal their intellectual property,
and win their case against IBM, then they lose the their intellectual
property because it becomes a matter of public record. This
destroys their business model, and in turn, SCO itself. At the
risk of bad karma, this would be unfair to SCO.
What SCO is actually doing is leverage the courts in an attempt to
destroy Linux by getting the courts to protect them from attacks
resulting from claims made in the media. They make claims of IP
theft publicly against Linux, and use IBM to get maximum appeal in all
the trade media. This gets them more bang for the buck for every
press release. The choice also makes sense financially, as IBM
has very deep pockets. Had they picked on Red Hat, for example,
they ran the risk of Red Hat running out of money in the middle of the
FUD campaign. However, for IBM, this barely shows up on their
bottom line.
So, they attack Linux publicly, but only sue IBM. Next, they get
the court to protect their intellectual property. Hence, the only
company that they reveal their source to is IBM, which already has a
source license. Publicly, they bring down Linux by revealing its
case against IBM, and get the court to protect them from settling with
the Linux community. This limits the Linux community from making
repairs if there actually are pieces of SCO source in the kernel. So,
if they are lucky enough to win against IBM, they have no obstacles
preventing them from suing and shutting down all commercial Linux
companies. If they can convince the court to nullify all of the
Linux license and rights of the copyright owners, they walk away with
the kernel and sell their new Unixware to all those Linux customers now
left out in the cold. This is strategy that would make Snidely
Whiplash or Bill Gates proud!
My opinion in all this is that Torvalds should take the
offensive. He should sue SCO for defamation. All the public
statements imply that he willingly let others put code illegally into a
product that he is largely responsible for. This could be
damaging to his ability to gain employment in the future. At that
point, he can request to see the offending code, and have the chance to
remove it. This is a reasonable request, and one a court is
likely to rule in his favor. It would be in this way, by also
leveraging the legal system, that this could be resolved.
Having worked with Unixware / Openserver in the past when it was offered by a real software company, it's funny to see how the SCO newsgroups have totally dried up with 0 nonspam posts but for 1 which has maybe 16 threads in it, and another with 1 thread. I've interviewed for 2 jobs in the last 6 weeks where SCO-> Linux migration was being done for a couple HUGE corporations. This flavor of Unix(tm) once RULED the point-of-sale and franchise type of business. Were they smart, SCO/Caldera could have made a business strategy based on a clear migration with a drop-in replacement Linux system with premium-priced support based model their customers would gladly have paid, but they shot both their feet off instead.
I can't imagine that SCO has trade secret rights to the *LOCATION* within Linux for their alleged IP, only the content, which is pubically accessible, so they really can't continue to claim trade secret rights.
File under 'M' for 'Manic ranting'