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SCO Forced To Show Evidence

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A federal court judge has given the SCO Group 30 days to pass along detailed information that it claims will prove IBM violated the terms of its contract, according to a SCO official.

SCO Group’s contract dispute is over whether Big Blue allegedly breached a contract with the company by contributing unauthorized portions of Unix-based AIX code to the open source movement. SCO claims that, as a result, Linux is an unauthorized derivative of its UNIX intellectual property.

U.S. District Court Judge Brooke Wells made the ruling after hearing arguments from lawyers representing SCO and IBM, each with motions to compel the other side to provide more information for discovery.

What’s more, the judge ordered a suspension on all discovery motions until SCO provides all the information required. In essence, if SCO doesn’t give up all the information it’s required to provide, IBM will not have to, either.

According to SCO spokesman Blake Stowell, IBM late Thursday passed along the Sequent source code it was requesting in one of its two motions to compel discovery. The judge postponed the other SCO motion against IBM to Jan. 23.

“(IBM’s source code) was not something that we had to ask for at the hearing, but something that we got by virtue of the fact they kind of did it at the 11th hour,” Stowell said.

The hearing is a small first step in the eight-month-old dispute that has roiled the open source movement over which copyrights were allegedly violated and distributed for free in the Linux kernel.

SCO wants documents in its bid to prove its claim that IBM lifted source code from its Source V Unix code to improve certain open-source Linux kernels; IBM, on the other hand, wants to know exactly what code SCO is talking about.

Eben Moglen, professor of law and legal history at Columbia Law School likens the case to a plagiarism case, but said this is the first time he’s ever seen the plaintiff unwilling to show off the evidence that proves the wrongdoing. The wording of the IBM motion, however, prevents SCO from withholding that information any longer — from IBM and from the general public.

“This is the big moment in the factual determination of what’s in SCO’s hand, if there are facts to support the claim that SCO has made concerning literal copying from Sys V Unix into the Linux operating system kernel — this is the moment where we find out,” he said.”Provided that IBM is not prevented by court order from sharing that information, it will be possible for everyone to know what SCO claim’s is theirs.”

The hearing comes one day after SCO’s CEO Darl McBride, in an open letter Thursday, continued his assertion that the GNU GPL (General Public License), under which Linux is distributed, violates the United
States Constitution and the U.S. copyright and patent laws.

In the first of a series of open letters the company plans to run on its Web site about the issue, McBride said the company would invoke copyright laws in its quest “against all who would use and distribute our intellectual property for free, and would strip out copyright management information from our proprietary code, use it in Linux, and distribute it under the GPL.

McBride accused the open software movement of tying to undermine the U.S. and European systems of copyrights and patents through the GPL.

“The software license adopted by the GPL is called ‘copy left’ by its authors. This is because the GPL has the effect of requiring free and open access to Linux (and other) software code and prohibits any proprietary use thereof. As a result, the GPL is exactly opposite in its effect from the ‘copy right’ laws adopted by the U.S. Congress and the European Union,” the letter said.

“SCO believes that copyright and patent laws adopted by the United States Congress and the European Union are critical to the further growth and development of the $186 billion global software industry, and to the technology business in general.”

The SCO/IBM case is not expected to go to trial until April of 2005. But if the Lindon, Utah-based SCO prevails against IBM in its contract dispute, SCO could be entitled to impose royalty fees against Linux
users, possibly retroactively.

In the past couple years, Linux has gained a lot of headway with governments and businesses as a cost-effective alternative to proprietary software. According to Gartner Dataquest, worldwide Linux server revenues are expected to more than double from $2.6 billion in 2003 to $5.4 billion in 2007. A royalty fee would likely take some of the luster away from those potential Linux revenues.

Open source groups point out that SCO has refused to respond to IBM’s requests for discovery over which lines of code are at issue.

But SCO’s Stowell said the company has already identified by name several areas where the lifted code can be found –in the Journal File System, Read/Copy/Update (RCU) and non-uniform memory access (NUMA), for example.

“I think that identifying it by name, it would be extremely easy for IBM to determine where those lines of code have gone into Linux,” he said.

“We can’t even be more specific than that. It’s pretty obvious that they are very familiar with these contributions and it’s not a mystery to them at all.”

IBM has declined to comment publicly, saying that it looks forward to trying the case in court.

Stowell said the Friday hearing is expected to provide a judge with more information in order to make a determination whether the motions to compel discovery have merit or are just creating more “busywork” for
lawyers involved.

But critics say SCO needs to produce the actual code under debate, given the company’s track record so far when producing “proof.” Earlier this year, McBride gave a presentation in Las Vegas with code examples he said proved IBM had swiped from SCO’s version of Unix.

The examples were later discredited by the Free Software Foundation’s general counsel, Eben Moglen, who showed the examples McBride provided was either not
originally SCO’s to begin with or were actually released to the public domain by Caldera (before the company renamed itself SCO), the company who bought out the original owners of the Source V code, the Santa Cruz

What also has SCO critics in a lather is the company’s willingness to provide news organizations and analysts selected code snippets of the millions of lines of code to prove their case, at the same time it rebuffs IBM requests.

The Yankee Group’s Laura DiDio was one of the analysts to take a look at selective code snippets.

“You cannot draw a definitive conclusion from seeing snippets,” she said. “You need the whole picture, and that’s what we haven’t seen yet. With that said, you’d have to be really crazy to try and sue IBM if you
didn’t have something.”

DiDio has also been subpoened by IBM as part of the dispute.

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