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SCO's Evidence Raises Questions About Case

By Jay Lyman
Aug 20, 2003 1:28 PM PT

Responding to doubts about its claim that its Unix source code was illegally incorporated into Linux by IBM, SCO put some of the actual code in question on display for Unix conference attendees in Las Vegas this week.

SCO's Evidence Raises Questions About Case

Lines of the code, which SCO displayed during a slide presentation on its suit against IBM, apparently have served both to bolster the Lindon, Utah-based company's complaints about copyright infringement and to cast doubt on the company's ownership claims. Many of the SCO-hosted Unix forum attendees who viewed the code reported that, indeed, large pieces of the code -- including programmer comments and spelling errors -- seem to have been copied directly into Linux.

On the other hand, the code SCO presented in its slideshow comparison was reportedly checked by technology experts who dated some of the code as far back as the early 1970s, a revelation that could cast doubt on SCO's claims that its copyrighted intellectual property - System V Unix source code - was improperly used in Linux.

PR Precursor

Yankee Group senior analyst Dana Gardner told TechNewsWorld that SCO's code revelations are simply part of a public-relations campaign that mirrors the software company's legal campaign, which might take years to resolve.

Gardner said SCO is showing enough code to pique the interest of the industry but not enough to allow a remedy to the alleged copyright infringements. Some have said it would be relatively simple to dispense with the SCO code or any of the modules that use it if the industry knew which lines were in violation.

"It seems as though they're trying to have it both ways," he said. "They're claiming that they're being injured to the tune of $3 billion plus, but they can't show you where it hurts."

Need for Uncertainty

One of SCO's biggest burdens is to prove that IBM or anyone else using Linux has copied directly from SCO's Unix code -- as opposed to reproducing software functionality, which is an acceptable practice, software legal expert Phil Albert told TechNewsWorld.

Albert, a partner with intellectual property law firm Townsend and Townsend and Crew, said SCO will face a challenge when it must get specific about its source-code claims because programmers will be able to write out or around the disputed portions of code.

"That's a problem for SCO," he told TechNewsWorld. "They need the uncertainty. If they are too specific, the problem will get fixed."

In response, Chris Sontag, SCO's senior vice president and general manager of SCO Source, told TechNewsWorld that the company has now unveiled the offending code and that it can be remedied.

"The vast majority of the code [in violation] is the derivative work from IBM, so that's a great place to start," Sontag stated. "We're talking about more than one million lines of code that can be remedied."

Unix of Yore

Albert said that regardless of how old the code in question is, SCO does hold the copyright that goes back to the origins of Unix. The company has been arguing that the case hinges mainly on whether Linux is a derivative of Unix.

"Unix is an old operating system, so it's been around a while, but that doesn't necessarily mean SCO has less of an issue with it," said Albert. "The argument is not that SCO created these portions; even if they didn't, they still own the copyright on it."

SCO's Sontag rejected claims that the copied code dates back to the origins of Unix, citing SCO's several-year-old System V version 4.1 as the main version of software where illegal copying occurred.

Gardner said that although the "componentization" and borrowing of software code has been viewed as a good and necessary thing in the industry, the line that divides illegal from legal behavior is fuzzy.

Slower Than Software

Gardner argued that it is unrealistic to expect legal oversight to keep up with the process of software development.

"It's almost nonsensical to think the legal domain could keep up," he said. "To think that there should be a level of oversight to something so fast-moving, creative and dynamic is pie-in-the-sky thinking." To hold software activity hostage by a series of legal maneuvers "doesn't seem possible," he added.

Although the case is not expected to begin making its way through court until next year, the presentation of code, efforts to limit or expel discovery material and other legal maneuvers dealing with the code will be key, according to Jeff Berkowitz, a partner with intellectual law firm Finnegan-Henderson.

"The litigation process in this case is going to be significant," Berkowitz told TechNewsWorld.

He added that the damages stage of the case, which could take two years or longer with appeals, also will be significant because SCO might pursue a theory based not only on IBM's software sales, but also on Big Blue's associated hardware sales, which could raise the stakes even higher than the current claim of several billion dollars.

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