IBM last week successfully persuaded the judge presiding over the case to give SCO 30 days to reveal the code that forms the basis for its US$3 billion lawsuit against Big Blue for alleged copyright infringements. The judge originally placed no restrictions on public disclosure of the disputed code and it's understood IBM's filing insisted that the code be revealed publicly.
SCO has brought forward allegations that IBM illegally included its Unix System V code in freely distributed versions of Linux. On the strength of those allegations, SCO has made further claims against commercial users of Linux kernel 2.4.x and later for license fees.
SCO has violently opposed public disclosure of the code at the heart of the dispute, claiming that doing so would damage its ability to leverage its intellectual property in future.
"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.
However, SCO public relations director Blake Stowell today said that the company had secured permission to present the code to a closed court.
"In other words, SCO will present this evidence to the jury, the judge and to the defendant (IBM), but it will remain confidential. No one in the public will get to see this code," said Stowell.
It's the first clear sign that the open source community, which has long been frustrated with SCO's secrecy over the code, will never get a chance to see the code nipping at the heart of its development ethos.
SCO has to date only allowed individuals to view the code subject to a non-disclosure agreement (NDA). The NDA has the effect of restricting the release of information that may allow the code to be removed from distributions of Linux.
The situation is frustrating for open source proponents, who believe that SCO has calculated its license claims to extract profit from the legal Catch-22 presented by the situation.
While the situation denies commercial Linux users and the open source community the opportunity to free the operating system from the legal encumbrance brought on by SCO's claims, those facing license demands are being forced to judge the quality of its claims before the court has had the opportunity to test them.
SCO characterises the licenses as a source of "immunity" from future intellectual property claims.
Well this is just sickening. The Linux leaders (eg, Linus Torvalds) have repeatedly stated that if SCO's code is in Linux then they want it OUT. A tainted Linux is useless to both the developers and to the end-users. The uncertainty is harmful to the prosperity of Linux. Without any indecision or uncertainty, the rightful owners of Linux want SCO's code REMOVED from Linux.
So the Linux leaders have been asking for months for SCO to identify the infringement so Linux can be repaired and life can go on. SCO consistently refuses to help with the reparation process.
Now IBM has managed to force SCO's hand open - SCO must at last identify the code that they claim is improperly within Linux - yet SCO again manages to negotiate a situation where the infringement, if any, STILL cannot be repaired.
Does SCO want the alleged infringement fixed? All of their actions suggest that they do not! SCO seems content to delay forever the reparation of Linux. Why? A cynical person might say that SCO wants to hitch their failing flagship products, ruined by years of neglect, to the rising success of Linux. In biological terms, SCO is a parasite.
This is a travesty. The true owners of Linux - Linus Torvalds and Co - have the legal and moral right to use their independently developed Linux as they see fit. SCO is effectively stealing Linux from the rightful owners, slapping a price tag on it, and using morally corrupt legal manoeuvres to prevent alleged infringements from being fixed.
SCO has the right to defend their intellectual property but why does SCO refuse to honour the intellectual property rights of Linus Torvalds? Linus wants to distribute Linux as free software with source code, as is his right. SCO wants to stop Linus from exercising his internationally granted and recognised rights to Linux, all under the guise of defending SCO's own rights to UNIX SYSV.
If there is conflict between Linus's rights and SCO's rights then the judge will find an equitable solution. But SCO wants to create a situation that benefits only SCO. A tainted Linux is harmful to Linus Torvalds and the entire Linux community. SCO must, in their self-appointed role as "defenders of the US constitution", cease their hypocritical actions and allow Linus to have his Linux back, unencumbered by SCO's code.