O, What a Tortuous Web We Weave...

Tuesday, June 24 2003 @ 06:19 AM EDT

Contributed by: PJ

It is being reported that SCO has issued a letter to their customers, or partners as they like to call them, though if I had purchased any of their products, I would not wish to be perceived as their "partner in crime". I don't personally see what is new in this letter that wasn't in the first one, but I must be getting sick of SCO and missing a beat. I will accept from others' seeing this as new that it is. The letter says that they won't sue their own Linux customers, just presumably everyone else:

"3 - Finally, although this action affects future development and sales of SCO[base ']s Linux offerings, SCO will continue to support our SCO Linux and OpenLinux customers and partners who have previously implemented those products and we will hold them harmless from any SCO intellectual property issues regarding Linux. SCO will continue to honor all contractual obligations with existing customers including product updates, service, and support."

When I read the letter, it did give me a laugh though, because the letter says in part this:

" As you know, on March 7, 2003 SCO announced that it filed legal action against IBM in the State Court of Utah, for misappropriation of trade secrets, tortuous interference, unfair competition and breach of contract."

There is no such legal term as "tortuous", though there probably should be. There is a word "tortious", meaning related to a tort.

Tortuous, however, is very apt, under the circumstances, because it means: "Marked by repeated twists, bends or turns; 2. Marked by devious or indirect tactics."

There is sadly no law against tortuous acts. If there were, I'd be suing SCO at 9 AM on the dot.

Clearly, SCO still does not understand the GPL at all; or they intend to say it doesn't have any legal weight. If the latter, they can hardly claim that they respect the IP rights of others, as they are asking others to do for them.

Meanwhile, regarding Linus' assertion that SCO does not have IP rights in RCU, here is a link to some information that appears to support that statement. Read the comments also, because there are helpful links.

As you will know if you did your homework on what is a trade secret from a day or so ago, you can't have a trade secret in a patented item. It's one or the other. By filing the patent, you give up all secrecy and thus all claims to trade secrecy. And in this case, the patent belongs to Sequent, which IBM bought. Here is what RCU does. And here is, once again, Cringely's analysis of the RCU claim.

However, one thing to remember is that you can have both a copyright and a patent, or one entity could have one and another the other. Also, there could be other patents, related to the original RCU patent but enough different to rate a patent, although I couldn't find any that SCO owns. Or, they could be making contract-related claims based on a Monterey contract we haven't seen. Or they just don't get the tech of it any better than they have mastered the legal terminology. Who knows?

Anyway, if you want to look at the patents, just go here and type in what you want to search for in Term 1. For example, if you type in 5442758 , the number of the Sequent patent, you will get quite a list of what the computer thinks are related or similar patents. If you go down the list, you will find quite a few belonging to IBM, including a number filed in 1996 onward, around the time of Monterey, a number belonging to Sun, a couple of Intel's and none of SCO's or Novell's. That doesn't mean it doesn't exist, just that you can't find it that way.

You can also search by key words, like "Read and Copy and Update", for example. You can also search by name of owner. I don't have the tech expertise to know what I have found, but perhaps you do. Once SCO reveals exactly what they say is copied, we'll have more to go on, if that happy day ever comes, but if I were a person that bets, I'd put my money today on their relying on a contractual claim, based once again on their owning UNIX and their aggressive definition of derivative code.

I did have a moment's reflection when I started coming across Sun's patents. Hmm, you don't suppose? Nah. Couldn't be.

One thing I noticed in the media coverage of the SCO protest last Friday: McBride was quoted as saying, "Just wait til July." Wonder what he means by that... I think instead of "tortuous" perhaps he meant to say "torturous".