SCO Fails to Meet Its Burdens
Therefore in the SCO-Caldera IP claims saga we feel the burden is on SCO-Caldera to patrol for SCO-owned code in Linux distributions. Additionally, the burden is on SCO-Caldera to inform LDPs immediately of any SCO-owned code that might have seeped into their Linux distributions.
However, SCO-Caldera has not done that and refuses to do that. We also discussed that with SuSE's Joe Eckert on 19 May 2003:
MozillaQuest Magazine: Has anyone from SCO-Caldera and/or acting on behalf of SCO-Caldera ever shown SuSE what SCO-Caldera claims to be SCO-owned code in SuSE Linux?
Joseph Eckert: No -- despite repeated requests for clarity.
We asked a similar question to Conectiva's Gordon K. Ho:
MozillaQuest Magazine: Has anyone from SCO-Caldera and/or acting on behalf of SCO-Caldera ever shown Conectiva what SCO-Caldera claims to be SCO-owned code in Conectiva Linux?
Gordon K. Ho: No.
It's the very same with Mandrake too:
MozillaQuest Magazine: Has anyone from SCO-Caldera and/or acting on behalf of SCO-Caldera ever shown Mandrake what SCO-Caldera claims to be SCO-owned code in Mandrake Linux?
Gaël Duval: Absolutely not.
Interestingly, Red Hat marketing VP Mark de Visser declined to answer. Please keep in mind that the SCO spokespeople complain about Red Hat more than they complain about any other LDP.
MozillaQuest Magazine: Has anyone from SCO-Caldera and/or acting on behalf of SCO-Caldera ever shown Red Hat what SCO-Caldera claims to be SCO-owned code in Red Hat Linux?
Mark de Visser: No comments from me - this is now lawyer stuff.
Part of an e-mail discussion about another matter on 21 May 2003 with SCO's Blake Stowell also addresses this topic. This excerpt might be slightly out of context. Nevertheless it is included here because it to some extent provides the SCO-Caldera position about not showing Linux distribution providers where SCO-Caldera says its proprietary code is in their Linux distributions. However, we plan to have the complete interview, in context, in an upcoming article.
MozillaQuest Magazine: Nor has SCO-Caldera identified any SCO-owned Unix code in the kernel.org kernel, the GNU/Linux operating system, or any Linux distributions. SCO-Caldera has been claiming there is such tainted code -- but it has not publicly identified any such code.
Blake Stowell: We will begin showing the misappropriated code under non-disclosure in June.
MozillaQuest Magazine: Why all the secrecy?
Blake Stowell: Some of this code is being used by other UNIX licensees and we have confidentiality agreements with many of them to not disclose the UNIX source code publicly.
MozillaQuest Magazine: The Linux kernel and GNU/Linux source code is all open-source code. So whatever SCO-owned Unix code might be in the Linux kernel or GNU/Linux source code is already available for public viewing. Why do you insist in keeping something that is public a secret?
Blake Stowell: UNIX source code is not public. It is not open sourced and the license under which we operate is very different from the Open Source license.
This appears to be an interesting little dilemma for SCO-Caldera. It refuses to show LDPs, the Linux kernel developers, and the GNU/Linux OS developers what code in their products is code that SCO-Caldera claims is SCO-owned code -- without their entering into an NDA (non-disclosure agreement) with SCO-Caldera.
Mitigation of Damges Doctrine Note: In tort law, there is a principle that the victim of a tort must take appropriate and reasonable action to mitigate injury in order to recover a money judgment from the tortfeasor (the damage doer) for the damages.
For example, let's say the river is rising and some water is starting to come under the front door to the house. Further, let's say this is not a raging flood. All that it would take to keep the river water from coming in the house would be to stuff a towel between the bottom of the door and the door jam.
If the homeowner fails to try to mitigate the damages by stuffing a towel under the door, a court might well-not require the homeowner's insurance company to pay for the damage to the carpet and other floor level items in the home that were covered by the river water -- for failure of the homeowner to make reasonable efforts to mitigate the damages.
In similar fashion, if SCO-Caldera does not show its Unix code in Linux, the Linux kernel developers, the GNU/Linux developers, and the LDPs might be able to convince a court that SCO-Caldera failed to mitigate its injuries by refusing to show the developers and LDPs where in the Linux code there is such alleged SCO-owned Unix code. How would you resolve that issue if you were on the jury?
However, the LDPs, the Linux kernel developers, and the GNU/Linux OS developers cannot remove any SCO-owned code that might be in their products if SCO-Caldera does not tell them what is that code.
SCO Parlor Dangerous for NDA Signer Flies
It certainly would be surprising if anyone would want to enter into an NDA with SCO-Caldera. In part SCO's Caldera v IBM lawsuit is based upon claims by SCO that IBM violated NDA and confidentiality agreements with SCO-Caldera. In other words if you enter into an NDA with SCO-Caldera, expect to be sued sooner or later by SCO.
Another problem is that it is not the problem of LDPs, the Linux kernel developers, and the GNU/Linux OS developers that SCO has confidentiality agreements with other parties that prevent SCO from showing what SCO-owned code SCO claims is in its products. It appears that SCO-Caldera is going to have to decide whether it wants to break its confidentiality agreements with its Unix licensees in order to enforce its copyrights as to SCO-owned code allegedly in Linux -- or if SCO-Caldera wants to abandon Unix code copyright enforcement claims as to Linux distributions, the Linux kernel, or the GNU/Linux OS.
In the alternative, SCO-Caldera could seek permission from its Unix licensees to show people where there is unlicensed SCO-owned Unix code. Interestingly, we only have SCO-Caldera's word that its agreements with its Unix licensees prohibit SCO-Caldera from showing the code. 'Nuff said!
Incidentally, UNIX is a registered trademark of The Open Group in the United States and other countries -- not a trademark of SCO-Caldera. The Open Group also owns the Unix Specification and the UnixWare trademark.