Judge switches spotlight back on SCO code

Posted on 4 Mar 2004 at 16:03

SCO has been ordered to show the code it alleges infringes its rights - including that which it has distributed under the GPL.

In the latest twist of the IBM case, Judge Wells has filed an order to move the discovery process forward - by which SCO and IBM gather information from each other with which to build their case - demanding that SCO hand over relevant documents to IBM within 45 days, including any code it has distributed to third parties. This will include SCO's Linux and other software products distributed under the GNU General Public Licence.

What is interesting is that the Judge will get to see just what code SCO has distributed of its own accord. 'This is to include where applicable the conditions of release, to whom the code was released, the date and under what circumstances such code was released,' states the order.

If this includes code that makes up products distributed by SCO under the GNU General Public Licence it will be possible to assess how much, if any, of the code SCO alleges IBM had improperly contributed to Linux had been contributed to the kernel by SCO itself. And SCO has sold Linux and continues to distribute products covered by the GPL.

While this may not be of earth-shattering significance for IBM - SCO maintains that the issues here are contractual in nature - it would surely upturn SCO's end-user lawsuits which are aimed at Linux users that have declined to buy SCO's Unix IP licence for Linux.

Jason Schultz, staff attorney at the Electronic Frontier Foundation said: 'It would certainly seem reasonable to me to assume Linux was legal if SCO released their own version under the GPL, which it appears they did.'

Previously SCO had failed to fully comply with the discovery order granted to IBM, saying it hadn't had time to gather all the information within the timeframe and adding that it first needed IBM to provide it with versions of AIX and Dynix it didn't yet have in order to see if there was any infringing code within.

Now the Judge has said SCO must comply with IBM's initial requests - which include identifying the specific code that SCO alleges had been contributed by IBM to Linux and the Unix System V code from which it believes this has been lifted within 45 days.

SCO on the other hand now gets some of its discovery requests fed into the order, including IBM versions of AIX and Dynix. However, the likely scenario is that IBM won't offer this until toward the end of the period by which time SCO will already have had to have done much of the work in identifying any code without this information.

Author: Matt Whipp