Friday, September 21, 2007

The Great SCO Swindle Winding Down, But Will They All Get Away With It?

Poor Dan Lyons. He thought like a bookmaker and wrote what he thought was right.
You see, a few years back, when Caldera was still Caldera, that company had successfully sued a large corporation and won. Then Caldera changed its name to SCO and sued another huge corporation. Dan the bookie thought it was a sure bet, and started cheering them on. Four years on, the sure bet went south on a technicality. They did not actually own the code they had accused others of stealing. At least that's the way I read his Snowed by SCO article over at Forbes.

My take on this is, Dan, you only had to look at the facts. Knowing a bit of IT history is also a plus. When the SCOX matter came up, I like most people thought that you can never rule out the possibility that some code might have been copied. After all, Unix source code was never particularly hard to get you hands on and was widely used as classroom examples all over the world.

Then if that code was just identified, it would be ripped out and replaced. It's happened before. In the free software world, whole subsystems get replaced when there's a good reason to, and if the reason is copyright violation it gets somewhat urgent. The problem is, in the SCO matter, no code was ever identified.

Some journalists went through an elaborate procedure involving non-disclosure agreements and were, we are told, showed code from Linux and somewhere else which showed remarkable similarity. When Darl McBride used the SCOForum 2003 conference to show something he passed off as ripped off code, it took only hours to identify the exact chunks through the obfuscation (yep, formatting comments in the Symbol font) and the code proved to be irrelevant.

None of these events helped convince techies of their claims, but for me the tipping point was when they claimed to have a reason to sue the BSDs as well. Anyone who had been paying any attention at all to Unix history knew that the ATT vs BSD lawsuit was finally settled in 1994, with most of the terms sealed, but one of the few things that was made public was that the parties had forfeited any right to sue each other over the Unix code base. To me and quite a few others, this was proof positive that they were 'misguided or dishonest', as a commentator put it at the time.

One of my favorite summaries of the facts of the case was written by Greg Lehey (of The Complete FreeBSD fame), who looked at the various announcements from the technical side. He stopped maintaining it after a while, but it's still there at his website, with as far as I tested with all links intact.

Most people seem to be relieved that the matter seems to be over. I beg to differ.

For one thing, the main characteristic of this matter has been the amazing ability of the SCO crowd to drag out the proceedings over irrelevant, mainly procedural matters. They will have more tricks up their sleeves, for certain.

The other thing is, with Dan's friends out on the technicality that they did in fact not have the legal standing to sue, we will never get that detailed walkthrough of the code where Darl and his covert experts are supposed to point out the infringing code. I, for one would have looked forward to that. Then we would have had a chance of getting to know their real motivation too, and possibly some solid leads on the planning and funding. Now that will just not happen.

Then of course there's the stockholder lawsuits and possibly the FTC. If you were one of those chumps who bought SCOX stock at roughly twenty dollars a share based on Dan Lyons' recommendations, wouldn't you feel a little sore now that your investment is about a cent to your original dollar? That is, if you can unload it before SCOX are finally kicked out of NASDAQ for good?

So poor Dan Lyons for not seeing this coming. And damn the technicalities for cancelling the main event.

For those of you eager for news of the book, we're working hard to get it out there.

Update 2007-09-25: Another non-apology, this one from Rob Enderle.

According to linuxtoday, Rob Enderle claims he was tricked by (wait for it) both SCOX and those ever-bullying Linux people.

Actually, there's not much to see there, You can read it as just another non-apologizing apology, with some tall tales about death threats and DOS attacks thrown in (yes, really).

As I've said a few times earlier, enough facts were on the table right from the start of this timewasting story to show that more than likely the SCOX crowd did in fact not have a case.

Now I wonder what, if anything we will be hearing from
John Parkinson, who wrote in CIO:

"a lot of the intellectual property in Linux is actually owned by companies that never officially agreed to make it available under an open-source license."

Interestingly enough, that came without any qualification at all.

That irritated me enough at the time that I wrote to them (pasted into some inane feedback form):

Alleged intellectual property theft

In the article called "The End of Idealism" (, John Parkinson writes, "a lot of the intellectual property in Linux is actually owned by companies that never officially agreed to make it available under an open-source license."

Please take a moment to consider the seriousness of this allegation. What Parkinson actually says here is, "large parts of Linux consist of stolen property".

Reading such allegations in an article written by a senior executive of Cap Gemini Ernst & Young is quite shocking in itself.

It is only reasonable that Mr Parkinson or Cap Gemini Ernst & Young specify which parts of the Linux kernel they consider to consist of stolen property.

All versions of the Linux kernel, along with detailed change logs and archives of the developer mailing lists are available to the public. Using these resources, all parts of the code base can be traced to the individual who submitted them for inclusion.

In other words, it is quite easy to pinpoint who did what, and Mr Parkinson and Cap Gemini Ernst & Young would be doing the public a great disservice by refusing to help point out code which was illegally included in the open source operating system.

Quite a few articles, well informed and otherwise, have been written about the SCO vs IBM lawsuit and SCO's allegations. I suggest interested readers browse FreeBSD Core member Greg Lehey's overview at while we wait for more details from Mr Parkinson or Cap Gemini Ernst & Young.

Slashdot Slashdot It!


  1. Yes, that's correct. It did take a while though, and at the time SCOX started their campaign against the world it was still under seal. It's a good thing the California public records law works the way it does.


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