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."

Comments

Scepticism is still called for

[GnrlFajita]

There is a discussion about this on Groklaw as well.

The question, of course, is whether the claim is true or not -- it is coming from SCO, after all. There's a good chance it could be true, though, because a big part of SCO's claim is for trade secret violations -- which require the alleged secret to, well, remain secret (disclosure does not effect copyright, but it does trade secrets). It only makes sense for them to seek a protective order, and it does not really effect the case from the judge's and lawyers' standpoint. But that doesn't make it suck any less for the rest of us who want to see the code for ourselves.

Re:Scepticism is still called for

[ArgumentBoy]

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.

Re:Scepticism is still called for

[WindBourne]

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.

Re:Scepticism is still called for

[bigpat]

"disclosure does not effect copyright, but it does trade secrets"

So, the fact that SCO themselves publicly released the entirety of the Linux source code for many years is going to be quietly swept under the table? No, there are no trade secrets in the Linux source code. SCO's position on making their allegations public makes no sense except as a way to prevent people from replacing bits of code that might actually be infringing. But since SCO has been releasing Linux Code themselves for years the best that they could reasonably hope for in terms of a settlement would be an injunction on versions of linux containing the code that they hold the copyright to.

SCO will never get enough money out of their claims to even pay their lawyers, only ill will.

Re:Scepticism is still called for

[Zeinfeld]

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.

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.

Re:Scepticism is still called for

[Zeinfeld]

Releasing new code won't get SCO off of Linux's back. They claimed that the use of the bits of code that were stolen were integral in later parts of the Linux kernel..parts that had nothing to do with the code. And it's impossible to prove them wrong; it's only possible for a court to decide where the boundary is.

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.

Re:Scepticism is still called for

[molnarcs]

" 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?)

Re:Scepticism is still called for

[spiritraveller]

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. . .

"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.

This protects the court

[AtariAmarok]

This protects the court, because if the code itself became part of the court records, SCO would have to sue the court itself for violation of SCO intellectual property.

"We find this Court to be in contempt of SCO!!!"

Re:This protects the court

[pjrc]

Judge Wells seems to have shown some contempt directed at SCO. She specifically commented about their providing the SysV code to IBM in a useless printed paper format. When Kevin explained that they knew IBM did something wrong based on IBM's public statements (and therefore needed all the code to figure out exactly what), she replied that IBM wasn't the only party making statements to the press!

Yeah, that would be a good idea

[mrpuffypants]

"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.

So they're afraid that releasing the code could encourage other people to take it and integrate into their own OSes? Yeah, there's a good idea. I wouldn't touch anything SCO-code-related with a 20-foot pole.

Re:Yeah, that would be a good idea

[laird]

"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.

Re:Yeah, that would be a good idea

[freeweed]

Isn't it the essence of SCO's argument that this code is already in the public's hands?

Not unreasonable

[Anonymous Coward]

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.

Closed/Open Court...

[MosesJones]

Well if they'd released it into Open Court they'd have had to sue the US Judicial System, so maybe the Judges just got scared ?

I can imagine it now

Darl McBride : "By forcing our code to be shown in open court the US Judicial system has infringed on our copyright and we demand a royalty from every sentence now uttered in court which is a derivative of ours... which is all of them"

Next week SCO sue the Department of Defense for using SCO infringing software in the conquest of Iraq.... and demand Iraq as payment.

Darl McBride leader of Iraq...

Keeping us in a Catch-22

[mackman]

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.

Thoughts

[TheSpoom]

Here's what I'm thinking of this whole thing.

1. Their code is already out there. Identifying what it is will not "make it public", since, allegedly, it is already public and being distributed with Linux.
   
2. This means that SCO can continue to say, "You have our code, but we're not telling you what you stole, and you still have to pay us for it."
   
3. Linux users aren't getting any value from paying the licence fee. The only thing they're getting is a promise not to be sued.

What prevents someone who's being sued for having SCO code from saying, in closed court, of course, "OK, we'll replace it"? And then, perhaps, release their changed code to the public, not necessarily identifying the SCO code but just showing possible replacements inside Linux that people could place?

I just wait for them to sue a Linux end-user... should be fun.

Re:fine by me

[chundo]

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 problem with this is that it's already been...

[Svartalf]

...published on the Internet by way of the alleged inclusions into Linux. It's no longer a Trade Secret and prior precedents say as much. I have trouble believing Blake Stowell's clams and I would have even more trouble with the court letting that one go down.

Get a clue....

[BlabberMouth]

"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.

Oh, calm down.

[JeanPaulBob]

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.

Bad for Linux

[ybmug]

This is not a good sign for the Linux community. If they were going to publicly state what code has been infringed on, then it would be easier for everyone to go through it. But, SCO only has to disclose the code that they think has been stolen in a private court, then only the people who are involved with the trial will have the opportunity to go through the evidence. It just puts more work on Linus and co.

"Their" code may turn out to NOT be theirs anyway

[Vexler]

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.

On the off chance that there IS infringing IP...

[Conspiracy_Of_Doves]

Do you think that the court can be made to understand that the only reason SCO doesn't want anyone to know what code is infringing is that two hours later, nobody is going to be using that particular code any more and therefore won't owe SCO anything?

stock scam

[mabu]

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.

"Democracies die behind closed doors."

[leoaugust]

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 ....

Plus, protects from reversible errors

[isn't my name]

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.

Re:It will still be shown to IBM

[Technician]

If all else melts down, I still have a boxed distro of Caldera Open Linux, and a Publisher's Edition. They sold it (I assume with a license to use it) and they shouldn't be able to litigate for using it as long as I follow it's EULA's. (Following it's EULA could provide some opertunities. I'm going to have to re-read it!)

I didn't see an expiration date on the box so I don't think one can be added after the retail sale. It's time to make one of them my Home Network SMB server and the other my Internet & Open Office machine.

Just because Caldera is bought out doesn't mean the original end user rights to use Caldera software are terminated. They released it. I bought it. I can use it. I didn't see an expiration date. IBM, HP, Red Hat, Suse, etc., may have more of a legal challange.

Disappointing yes, set back no

[UnknowingFool]

While the closed proceeding is disappointing to Linux advocates, it is not as much as a set back as one might think. After all, IBM still will get access to the code. With IBM's resources, I'm sure they can skillfully analyze and debunk SCO's claims. While we cannot do so, our analyses would not have mattered to the court anyway. Those who may have been invovled the the "alleged" code might be ready to receive some inquiries from IBM. Namely the two former SCO/Caldera employees, Linus, etc.

Except that

[cgenman]

if the GPL is an amalgamation of individual copyrights collected together, then SCO's code needs to be delineated for the end users. If the GPL is an umbrella copyright, then all of the developers need to know what is infringing so that it can be removed.

The secret is going to be out. Whether it happens now, when the accused is standing in court, or later when the judgement is handed down and something has to be done about the infringement, it is going to be out. The only way the secret could stay a secret is if the judge threw the bums out. Not a bad option, in my opinion.

At this point, a well-timed "leak" is in order. Those silly IBM lawyers and their unsecured FTP servers.

Hey... Isn't this what Freenet was made for?

Re:Except that

[CanadaDave]

You conveniently left out this sentence:

"The creator of Freenet, Ian Clarke, has cast doubt on whether Winny uses Freenet's full identity-cloaking features or its cryptography, according to a report in New Scientist."

SCO spin on standard protective order

[gvc]

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.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:The problem with this is that it's already been

[Robotech_Master]

I have trouble believing Blake Stowell's clams...

Then don't listen to the man's clams. What do mollusks know about jurisprudence anyway?

Stop making shit up

[siskbc]

If the EULA is not on the outside of the box, than it is invalid if you bought the box from a store.

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.

SCO FUDizing the pro-IBM protective order

[FreeUser]

groklaw has an excellent write up of this. To wit

• No new motions have been made since SCO's defeat in the last hearing
  
• No new hearings have been scheduled or held
  
• No new orders have been issued by the court
  
• The existing protective order was mutually drafted and agreed upon by IBM, the court, and SCO.
  
• It protects trade secrets, but not "code" per se.
  
• Showing that any code distributed by SCO as a part of GNU/Linux is not a trade secret is trivial to do, and we can expect IBM to do so quite quickly
  
• Non-trade secrets have no such protection, and will be available in open court documents
  

In other words, this is typical SCO FUD and misrepresentation of the facts, and in this case, facts that are already old and well known to those following the case. SCO has not won any victory here; quite the contrary. The alleged code (if it exists at all) will almost certainly be available after some very standard legal procedures.

There is truly nothing to see here; zdnet got suckered by a SCO press release. Regrettable, as they should have known better by now, but aside from allowing Darl et. al. to defraud some day traders and invenstors for another few days, it really doesn't amount to anything at all.

SCO=CoS!

[CaptainAlbert]

It's official! The Santa Cruz Organisation (SCO, $CO) have been taking lessons from their close acronymical relatives the Church of Scientology (CoS, Co$). Don't believe me? The evidence is quite compelling:

Extortion

• CoS: Tell you that in order to be a happy and successful person, you must pay them a lot of money, because they are the sole owners of the only mental health "technology" that can save you from psychiatry;
• SCO: Tell you that in order to be a happy and successful Linux user, you must pay them a lot of money, because they are the sole owners of the only operating system technology that can save you from Microsoft;

Spurious Copyright Lawsuits

• CoS: Bring expensive lawsuits against organisations who publish details of their courses, doctrines, rituals and modes of operation, in an attempt to spread fear, uncertainly and doubt and to silence their critics;
• SCO: Bring expensive lawsuits against organisations who publish what they claim is "their" intellectual property, in an attempt to spread fear, uncertainly and doubt and to inflate their share price;

Unwarranted Secrecy

• CoS: Refuse to release details of what goes on inside their organisation behind their razor-wire fences, even though they claim to be a peaceful and benign religion with right on their side;
• SCO: Refuse to release details of which parts of Linux souce code they believe are infringing on their copyright, even though they claim to be a good and responsible company with right on their side;

Playing to the media

• CoS: Issue gushing press releases about how their cause is misunderstood and misrepresented; claim that in the face of (alleged) intellectual property misappropriation, their lawsuits are the only proper course of action;
• SCO: Issue gushing press releases about how their cause is misunderstood and misrepresented; claim that in the face of (alleged) intellectual property misappropriation, their lawsuits are the only proper course of action;

Paranoia

• CoS: Act as if the whole world is conspiring to destroy their organisation, publish invented and overblown claims of harrasment and threats towards their members in order to portray their opponents as criminals;
• SCO: Act as if the whole world is conspiring to destroy their organisation; publish invented and overblown claims of denial-of-service attacks on their servers in order to portray their opponents as criminals;

Dead-agenting

• CoS: Identify that most of the hostility towards them comes from particular groups and individuals, then seek to discredit those people by publicly accusing them of being violent, sexually immoral, drug addicts or anything else they can dream up.
• SCO: Identify that most of the hostility towards them comes from particular groups and individuals, then seek to discredit those people by publicly accusing them of being communists, hippies, deadbeat college students or anything else they can dream up.

Yup, it's only a matter of time before SCO declares itself a religion, McBride declares himself God, and the staff are made to buy e-meters, exorcise their body thetans and start work on a remake of Battlefield: Earth... remember - SCOentology, you heard it here first, people. :)

WTF???

[Dolohov]

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.

The First Rule of Open Source Fight Club

[MisterMook]

1. You do not talk about Open Source Fight Club.

Ahh, but ...

[A nonymous Coward]

... it all depends on how bribable our legal system is, either directly or indirectly. SCO got a lot of clams from investors recently ...

Re:Ahh, but ...

[cHALiTO]

I knew the church of scientology was behind this!

Re:Ahh, but ...

[Anonymous Coward]

Scientology, Church Of. It's a Tom Cruz Operation.

OK, what about something like this...

[starseeker]

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.

These are the people behind the actions.

[cgenman]

The executive board of SCO consists of:

Darl C. McBride
Chris Sontag
Robert K. Bench
Reg Broughton
Sean Wilson
Larry Gasparro
Jeff Hunsaker
Ralph J. Yarro III
Steve Cakebread
Edward E. Iacobucci
R. Duff Thompson
Darcy Mott
K. Fred Skousen
Thomas P. Raimondi, Jr

If you see any of these people in years following the implosion of SCO, do not give them a job. Do not enter into contracts with them. Do not loan them your car. They have proven themselves incapable of planning for the future of a company and incapable of behaving like mature partners in the sphere of business. At a time when SCO desperately needs to be investing in research and development, these people are plunging the company into bankruptcy. They're taking a tremendous gamble with their shareholders money, a gamble which even if successful would only mean residuals on existing Linux implementations in the US, and a painful migration for everyone else to OpenBSD. They're betting everyone else's money on a long shot, and should be held accountable for their irresponsible actions.

Once again, those names are

Darl C. McBride
Chris Sontag
Robert K. Bench
Reg Broughton
Sean Wilson
Larry Gasparro
Jeff Hunsaker
Ralph J. Yarro III
Steve Cakebread
Edward E. Iacobucci
R. Duff Thompson
Darcy Mott
K. Fred Skousen
Thomas P. Raimondi, Jr

Re:These are the people behind the actions.

[saforrest]

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.

In Soviet Russia...

[anthony_dipierro]

In Soviet Russia, corporations obey courts.

Put this statement in perspective...

[starseeker]

"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.

Any IP lawyers around?

[ThosLives]

I was just thinking about SCO's claim that they have "trade secrets" that they don't want to get out. There was a post later in this thread mentioning "what if some other guy came up with code that has the same functionality without stealing it?".

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"?

Re:Any IP lawyers around?

[goates]

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

Re:Any IP lawyers around?

[cpt kangarooski]

No, there is protection for trade secrets, just not how you think.

Trade secret law really isn't about the protection of the secret, per se. It is a branch of unfair competition law. It's designed to prevent corporate espionage, because you can get in trouble not for discovering the secret, but for HOW you discover the secret.

Reverse engineering or independent creation are fine.

Sneaking in in the middle of the night and stealing the plans from the competitor is not.

Re:Any IP lawyers around?

[Monkelectric]

Yea theres a good reason to. The patent is a cookie given to an inventor to TELL US HOW THEIR INVENTION WORKS. They get protection for a length of time, and we get to know how it works. If a company wants a trade secret (doesn't want to tell anyone how their technology works) then they don't get that protection. That's the tradeoff.

It's a good thing to -- we want knowledge to be as widely held as possible so science can advance.

SCO Information Minister...

[EvilTwinSkippy]

Reno, NV (AP)

SCO has announced the hiring of Mr. Mohammed Sahhaf to the position of Press Relations. Mr. Sahhaf, known in the US as "Badgad Bob", had a few things to say during the announcement:

In regards to the outcome of the case he replied "Allah willing, we will be feasting on the penguin blubber of IBM!"

I regards to the recurring Denial of Service attacks on SCO's network: "They are committing suicide at the gateways!"

In regards to the present setback in court he replied: "We have them surrounded with caselaw."

IANAL

[khasim]

But I believe you are correct about trade secrets and parallel development.

SCO might have a case IF they could show that SCO showed IBM the trade secrets SCO was using under contract and that IBM then released those to Linux.

So, SCO has to identify the code they claim is a "trade secret". For some reason, SCO has been very, Very, VERY reluctant to do so in court.

Then SCO has to show that there was a contract covering that code signed with IBM (or one of the companies that IBM now owns and that the contract was still binding when ownership changed) and that IBM had access to that code PRIOR to that code being added to Linux.

IF (and that's a big IF) both of those items are met, then IBM needs to show that the person/team that submitted that code to Linux did not have access to the SCO code.

Trade secrets have a problem in that it is up to the company with those secrets to protect them and take REASONABLE precautions against them leaking out.

Now, if SCO shows the code and the contracts and IBM cannot show that the code was clean, IBM can still come back and say that since no one in the Linux kernel developers' community can IDENTIFY THE SCO CODE, the "trade secret" is still a secret.

Re:Someone needs to explain to the judge...

[Little Brother]

NO! Don't try to explain the law to a judge! Judges tend to understand the law better than the average ./er. You might have to explain the technology to the judge, but I'm sure the defence will do an ample job at explaining that SCO's claims are BS. The defence WILL, by law, know all the evidence against them and shouldn't have a hard time proving their innocence of the noncrime. All we really need to do is wait for a verdict and do what we can to inform INVESTORS that SCO's claim is ridiculous as a matter of law.

Re:The problem with this is that it's already been

[Odin's Raven]

I have trouble believing Blake Stowell's clams...

Tonight on BBC 4: Clamofibophobia -- are bivalve mollusks lying to you?

As a public service to the /. community, let me review the relative truthfulness of various members of the animal kingdom.

• Clams - Generally trustworthy, renowned for keeping their mouths shut. However the so-called Blake Stowell clam ("Musculius SCOlegalitus") can be deceiving, often posing as an oyster to trick its prey into thinking it contains a pearl.
• Penguins - C'mon, it's cute. You can trust penguins.
• Daemons - Technically not an animal, but also cute. You can trust daemons. (Warning: do not confuse daemons with demons. If it wants to rip your entrails out and place them on an altar, it's a demon. Run.)
• Butterflies - Do not trust butterflies. Even minor changes in a butterfly's flight configuration can introduce world-wide climactic changes with destructive consequences. Butterflies have also been linked to the spread of numerous viruses.

SCO boardmember member of Troll Tech's board?

[k2r]

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

You've bought SCO's bait-and-switch

[Theatetus]

SCO might have a case IF they could show that SCO showed IBM the trade secrets SCO was using under contract and that IBM then released those to Linux.

Ah, another victim of SCO's dishonesty.

Look back over the case that SCO filed against IBM. SCO is not claiming that IBM ripped off code SCO wrote or already owned.

I want to say that again because it's the crux of SCO's lies: SCO is not claiming that IBM ripped off code that SCO wrote or already owned.

What SCO is claiming is that code that IBM wrote for SCO was also included in Linux, allegedly contrary to IBM's license.

Essentially, SCO is claiming IBM had a "no compete" clause somewhere in that license. I don't know if they did or not. Even if they did, I don't know if they contributed code to Linux in contravention of the clause.

But please let's not let SCO distort the question of fact: they have never claimed that pre-existing code owned by SCO was added to Linux. They have claimed that code was simultaneously added to Linux and (I think; somebody correct me here) AIX in violation of IBM's license with SCO.

Trust me - You Don't Need to See SCO's Code

[Compulawyer]

This type of thing is a standard occurrence in lawsuits dealing with matters alleged to be confidential or trade secret. Before you go flaming away on me, read to the end of this post, please, and I'll explain why you don't need to know what SCO's code says.

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:

1. 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.
2. 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.
3. 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.

Re:Trust me - You Don't Need to See SCO's Code

[starseeker]

"assume 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."

This is where I get confused. If in the Linux kernel, the code is ALREADY disclosed to the world. Trade secrets in the code have already gone bye bye. The only thing NOT disclosed is specificly which code disclosed to the world is SCO's code. What can possible be left to protect? If they don't want it disclosed that they own the code, the effective thing to do would have been to quietly contact key people, get it removed due to confidential IP violations accepted by the lead Linux guys, and live happily ever after. If they didn't want someone to know that code X was owned by SCO, what they have done is sure to have that someone looking through the kernel for things they might recognize as being SCO no-nos.

The only thing their current course can do is spray mud over Linux. No other goal is consisted with their behavior thus far, unless they are dillusional and think the free software community will suddenly cough up money. They've said that, but I don't see how they can actually believe it. Or maybe I'm just underestimating their cluelessness.

But the code is already fully released !

[openmtl]

The intent of holding a closed court session is somewhat frustrated by the fact that ALL of the relevant SCO code has already been released and is fully visible to the public !

Its just that SCO finds that even they don't fully know which lines it is either. Its embarrassing for them so they have resorted to a closed court.

If it takes a closed court for IBM to discover what the hell SCO are going on about then so be it but fact remains that NO ONE wants the SCO code if it compromises the freedoms that the GPL affords us with respect to the Linux kernel.

I'm happy to pay good money for a product or service but all I want to know is what exactly am I paying my money for ? Its REAL simple SCO: simply tell me what I am getting for my money. I'll show you my money if you show me your code. Deal ?.

Then I can make a call if I want it or not. Always wanted to look at OpenBSD/FreeBSD but its the freedoms of the GPL that keep me with Linux.

We need to see their infringement claims

[Animats]

We don't want to see SCO's source. We want to see SCO's specific claims of infringements within Linux source. If and when SCO ever discloses that, any infringing code can be rewritten.

The IBM case is a contract dispute. The SCO vs. IBM issues are different from the copyright issues SCO raises in the press and which will eventually be litigated in Red Hat vs. SCO.

Good tactical move

[logicnazi]

Asking for sealed procedings is unfortunatly an all to common move in american justice nowdays, especially in divorce trials. The misapplication of this power is particularlably worrisome because it strikes at the heart of our open system of justice. If the people cannot see the miscarridge of justice they can't correct it.

While I doubt SCO is particularly worried about (by themselves) rousing congress to a leglislative remedy for computer copyright law (though they could be part of a larger trend that does so) they are worried about too many public eyes.

Look at how effective publicity and the internet have been in finding examples of prior art in software patent cases. Asking for closed procedings forces IBM to track down every potential witness individually by themselves. No doubt SCO is hoping that with an open source product with developers spread across the globe IBM won't be able to find the relevant people if they can't publisize their claim.

SCO Unixware is dying!!

[Billly Gates]

It is official; Netcraft confirms: SCO is dying

One more crippling bombshell hit the already beleaguered SCO UnixWare community when IDC confirmed that SCO market share has dropped yet again, now down to less than a fraction of 1 percent of all servers. Coming on the heels of a recent Netcraft survey which plainly states that SCO UnixWare has lost more market share, this news serves to reinforce what we've known all along. SCO is collapsing in complete disarray, as fittingly exemplified by failing dead last in the recent Sys Admin comprehensive networking test.

You don't need to be a Kreskin to predict SCO's future. The hand writing is on the wall: SCO faces a bleak future. In fact there won't be any future at all for SCO UnixWare because SCO is dying. Things are looking very bad for SCO. As many of us are already aware, SCO UnixWare continues to lose market share. Red ink flows like a river of blood.

SCO has lost 93% of its core developers. The sudden and unpleasant departures of long time UnixWare developers L. Ron Hubbard and Joseph Smith only serve to underscore the point more clearly. There can no longer be any doubt: SCO is dying.

All major surveys show that UnixWare has steadily declined in market share. SCO is very sick and its long term survival prospects are very dim. If SCO is to survive at all it will be among OS dilettante dabblers. SCO continues to decay. Nothing short of a miracle could save it at this point in time. For all practical purposes, SCO is dead.

Fact: SCO is dying