See disputed code? Oh SCO you won't, says judge

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 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 CEO Darl McBride at conference in August this year.

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

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

Andrew Colley writes for ZDNet Australia