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June 3, 2003

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MozillaQuest Op-Ed

SCO-Caldera v IBM:

IS SCO NDA Sideshow Setting a Trap for Analysts and Linux Developers?

Linux and the SCO-Caldera v IBM Lawsuit

By Mike Angelo -- 3 June 2003 (C) -- Page 4

Burden on SCO-Caldera to Prove Its Unix Code in Linux

Article Index

SCO-Caldera v. IBM:

SCO Clears Linux Kernel but Implicates Red Hat and SuSE

IBM Files Answer to SCO's Caldera v IBM Complaint

IBM Response to SCO-Caldera Complaint Is Outrageous!


SCO-Caldera & the GNU/Linux Community:

Ventilating SCO Smoke

The fingerprint excuse, and similar excuses, is one of the things we asked SCO's Blake Stowell about in our 16 May 2003 e-mail discussion set forth above. The fingerprint excuse and other excuses just do not compute.

You do not have to be a lawyer or a legal expert to realize that the SCO-owned Unix code in Linux thing is not even close to comparable to a fingerprint-wiping situation. Sure, if there is only one smoking gun and the shooter gets a chance to wipe his/her prints off the gun before the cops dust the gun for prints, that is going to hurt prosecution of the killer.

Unlike SCO's ridiculous fingerprint analogy, published versions of the kernel.org Linux kernel, the GNU/Linux operating system, and GNU/Linux distributions already have been distributed to millions of people. Moreover, if SCO-Caldera has been examining these for inclusion of SCO-owned Unix code, SCO-Caldera itself has copies of the kernel.org Linux kernel, the GNU/Linux operating system, and GNU/Linux distributions in its possession, if it really has checked them for SCO-owned Unix code.

Sorry, McBride, but we just do not picture Linus Torvalds and the kernel.org crew, or Richard Stallman and the GNU people, or the Linux distribution people running around trying to snatch up every copy of the kernel.org Linux kernel, the GNU/Linux operating system, and GNU/Linux distributions all over the world so they can erase alleged Unix-code fingerprints in them.

Perhaps the closest to a reasonable excuse for not showing the tainted code is the one about confidentially of the Unix code.

As Thomas C. Carey mentioned in the above discussion, SCO is not without good reason in asking for NDAs from the people to whom it may show the allegedly infringing Linux code. As you know, the entire lawsuit against IBM is founded on theft of trade secrets and breach the confidentiality provisions of the UNIX license, not on copyright or patent infringement. If SCO were to release UNIX code without requiring an NDA, it would open itself up to an argument that it had destroyed its trade secrets by releasing them, thereby making the lawsuit moot.

Also, please add to that this excerpt from our discussion with Blake Stowell.

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 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.

Let's say you go along with the notion there is some element of secrecy in the Unix code. Nevertheless, all the Linux kernel and GNU/Linux operating system code is open source -- it already is in the public domain.

That means that McBride and SCO-Caldera are not revealing any secret code that already is not public by publicly stating what files and lines in the Linux kernel code and GNU/Linux operating system code are allegedly subject to claims of SCO-owned Unix code copyrights. The public already knows about those files and lines.

One could make an argument that by identifying the Linux code that allegedly infringes on SCO-Caldera's alleged Unix copyrights, SCO would be disclosing the Unix code. However, likely that would be an overly hyper-technical interpretation of confidentiality agreements that SCO-Caldera might have with its Unix licensees.

Keep in mind here that SCO-Caldera is looking for excuses, such as its fingerprint excuse, to not publicly identify the Linux code that it claims is an infringement on SCO-Caldera's alleged Unix copyrights.

Interestingly the way Tom Carey puts it, it does make some sense that SCO-Caldera would need to have code-observers sign NDAs. But not for the reasons that SCO-Caldera offers, per se.

Under Tom Carey's sensible rationale, the SCO NDA-scam has nothing to do with confidentiality agreements or wiped-fingerprints as SCO sets forth. Rather, making the Unix code that already is not public, public, could diminish SCO's Caldera v IBM claims. The slightly different but significant variation in SCO's confidentiality agreements and wiped-fingerprint excuses are not sensible.

Nevertheless, if SCO-Caldera merely lists the files and lines in the already public Linux code that it claims infringe on SCO-owned Unix copyrights, then SCO-Caldera does not run afoul of Tom Carey's reason for SCO-Caldera asking for code-viewers to sign NDAs. This gets down to the nitty-gritty of how the NDAs are carved.

We addressed this confidentiality angle some in the SCO Parlor Dangerous for NDA Signer Flies section of our 28 May article, Is SCO Trying to Dictate Linux Kernel and GNU/Linux Development Procedures?

There we noted in part:

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.

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.

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!

  • See Ventilating SCO Smoke on Page 5 ----->

  • Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

    SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

    SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip


    Related MozillaQuest Articles


    SCO-Caldera v IBM:


    SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

    SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip

    About the "Hey SCO, sue me" Petition


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    Copyright 2000-2003 -- MozillaQuest -- Brodheadsville, Pa..USA -- All Rights Reserved
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