SCO keeps disputed code secret

SCO keeps disputed code secret

Summary: The code at the heart of SCO's legal action against IBM will be revealed only in a closed court

When the SCO Group finally lays its cards on the table in its upcoming lawsuit against IBM, the open-source community won't be given the opportunity to see them.

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 $3bn (£1.72bn) 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 chief executive Darl McBride at conference in August this year.

However, SCO public relations director Blake Stowell said this week 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, 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 licence 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 licence demands are being forced to judge the quality of its claims before the court has had the opportunity to test them.

SCO characterises the licences as a source of "immunity" from future intellectual property claims.

Topics: Apps, Software Development

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.


Log in or register to join the discussion
  • It's too bad SCO is full of crap. We might be inclined to believe them if they had acted in their own best interests in getting distribution of the code stopped but they haven't. It's all been a stock drumming scheme funded by microsoft to spread unfounded FUD against Linux.

    SCO has no code.
  • Typical! From what I've also read on Gartner (?) both IBM and SCO wanted the private sessions. However, we will eventually see the code... Don't all court proceedings have to become public at some point? Either that, or someone will manage to get the code past the censors.
  • I don't understand. If, as SCO claim, their code has been copied into Linux then how can any code they show in court "be secret"?

    Obviously, they are doing this to prevent any infringing code from being removed. Legally, they should give the offender an opportunity to stop offending.

    Now, if the copying is significant, what are they worried about? If the copying really is the fundamental foundations of enterprise computing, how can it be removed?

    I can only assume that it isn't fundamental to anything (if it exists at all) and could be easily remedied (if a remedy is required).

    Yet another heavily spun press release by Mr Stowell. Why is it, that articles appearing in the press rely on commentary provided by readers?
  • More proof of lazy journalism, when the writer bases his conclussions on a company's PR materials. If Mr. Colley wanted to do a bit more digging, he could head over to, which has become the definitive website for examining the truth behind the press releases of SCO. Blake Stowell and Darl McBride have not proven that they are worthy of trust (quite the opposite), and any journalist that accepts their statements at face value is not earning my trust either.
  • How about releasing file, version and line numbers of the disputed code. That surely can't be a trade secret, and its the least they can do to help the accused. Wasn't there some principle that in a copyright dispute the accused should be allowed to try to stop infringing?

    The statement that revealing the code will prevent SCO capitalising on potential future revenue is like a kidnapper stating that revealing the location of the hostages would prevent them claiming ransom. After all - we must uphold the rights of all individuals, including kidnappers, to earn revenue without restriction, regardless of any ethical or legal issues around how they choose to do it!
  • Articles like these are amusing:

    1. SCO owns only copyrights, no trade secrets - stated in public court documents. Copyrighted material may be published without SCO loosing any of its existing rights.

    2. The order of confidentiality just granted by the court allows SCO to designate material it submits as CONFIDENTIAL, but allows IBM to contest it - which will require SCO to prove exactly why it should be considered so by legal standards. This may be possible to do with their own code, but it is highly unlikely that the court will allow publically available code (BSD, V32, Linux) to be so restricted - being already publicly available, they will likely fail to meet the legal standards required.

    3. The legal remedy for stolen copyrighted material MUST include allowing the defendent to remove that material. So SCO must publicly identify the Linux code that they claim right to - which will allow the Open Source community the chance to research and identify the codes legacy....and act accordingly.

    If this doen not happen here, it will happen in the Red Hat trial which more directly addresses these exact issues.

    4. Release of SCO code is not needed/wanted by the Open Source community. It has no value.

    In summary, they portray SCO as having a non-existant victory; "successfully persuaded" was just a normal step in court proceedings for these types of cases. They gained nothing that they were not expected to request - and IBM did not contest it.
  • Has the author of this report bothered to check the transcript of the hearing on Dec. 5?

    Has the author studied the record of SCO's public statements on PR and in the court records?

    Ah! I thought not. Get to work!
  • This could prevent IBM from having the resources of the whole Open Source community dispute the alledge violations.

    When the first tidbits of code violation examples were originally made public a few months ago, The reaction of OS top experts (which I'm not one) was overwelming and quick. And the code was VERY quicly identified.

    I don't think SCO wants to take on the resources of the whole Open Source world... They know they'll lose.

    Hell, they'll still lose taking on IBM but now it won't be quite so publicly embarrasing.
  • It's their IP and that's why they don't want to reveal it, don't you think? Most of the books you read have copyright protection. People deliver work and want to eat, isn't that normal then? Do you guy's work for nothing? Oh, you eat from the free food out of the garbage cans on the streets. Nothing against volunteer work but please, don't show off with someone else's feathers and keep your paws away from someone else's bread.
  • What a load of BS!
    The code is out there, it is part of the open-source Linux Kernel, as published by SCO itself using the GPL. So all this is just more tactics from SCO. It is out in the public and cannot be used any longer for any IP case.
    Anybody who says otherwise is either a SCO stockholder, a Microsoft employee or needs his head examined.
  • A million lines of code shown only in a closed courtroom? Hmm... this trial is gonna last decades!
  • I read your article with continued amazement and horror that the courts should so rule. It seems to me that 'guilt' is being pre-supposed and that the court is reinforcing this view by its actions and also handicapping the defense in showing otherwise.

    I, for one, cannot see any justice in SCO's actions so far which seem to be condoned by the courts, although I, and many others, find their actions dispicable whether or not they (SCO) have a case.

    This is not the way I would expect justice to be dispensed and truth established. It is shameful.
  • There is a great observation about the SCO IBM law suit at

    According to the Greybeard: Using markets, media and courts to enforce their claims and demands, no one seems quite sure just what SCO is really up to
  • It's not worrisome that SCO haven't revealed copyright infringements; they must do so to protect their intellectual property. IANAL but, as I understand it, if they haven't sought repair of the infringement, their case for damages is very weak.

    Kernel hackers are waiting to see the code so that they can remove any infringing code. That is what they are supposed to do. SCO have not made it possible for them to do so yet. They are supposed to do that.

    The law won't allow a complaintant to block infringers from correcting the infringement in order to maximize their damages.
  • I would like to see IBM do a hostile take over of SCO and the issue would be dead.

    I certainly hope that IBM will "anonymously" fix the code in question after the trial and post it to the organization. Then SCO would be out of luck. The word just has to be leaked...
  • Someone didn't get it. SCO is a dying rat who is trying to cling to life as a parasite by attempting to gain revenues from law suits rather than coming up with a product that they can sell outright. UNIX as an operating system is being beat by Linux. SCO knows it and they hate the fact that their days are limited. They are just showing their dying gasp for air. No one wants to "show off with someone elses feathers" or "eat someone elses bread" except SCO, who is trying to steal money using the courts while not allowing someone to make things right. Where I come from, that is what we call a bully. Bullies get punished, not the poor kid they are beating up. Being beat in the market place doesn't mean you have the right to place SLAP law suits against others to try to steal money.
  • Some good points here - especially common sense tells you no one can claim something they haven't specified or ask for money for a product (IP if you will) which hasn't been described, defined, or specified.
    IANAL, and I don't mean to suggest anything to anyone, but, if SCO's claims are preposterous, as everyone expects,
    what's to stop IBM ( assuming they have the case won before it's even heard ) from publishing the necessary info about the code in question to the satisfaction of the Open Source community.
    What's SCO gonna do to stop it? Sue 'em again???