- "Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises." Chapter 1, Bleak House, Charles Dickens.
Last week, SCO won a point against IBM in court. The Utah company wanted access to all of IBM's source code to AIX and Dynix: so granted. That's more than two billion lines, giving SCO practically unlimited opportunity to bring example after example of potential contravention in front of the court. Forget about resolution this year. Or next.
Contravention of what, though? If you thought this case was about open source and intellectual property, think again. The reason Judge Wells granted access was that "the contract claims may have a more important role in the outcome of this case than the copyright claims". In other words, while there's no proof that IBM contravened any copyright law there is a chance that it didn't follow the contract between it and SCO that it had when it licensed Unix.
Two things follow from this: as contract disputes can go on for ever, the case will probably be resolved by one or the other of the parties running out of time or patience. Delivering two billion lines of code is going to cost IBM manpower and money, but it has a thousand times more of each than SCO -- which now has a truly Herculean task on its hands. Be careful what you wish for.
More importantly, the relevance of this case to open source software in general has been demonstrated to be small or nil, SCO's intemperate blustering notwithstanding. Forget Darl McBride's sabre rattling about the GPL being against the US constitution: the case is as it seemed when everything kicked off in 2003, a result of SCO's affronted sensibilities at the way IBM ditched Project Monterey. The judge has made it plain that if SCO wants to continue, this is the way it must play the game -- as SCO has been doing in any case.
Which is not to say that bad things won't happen -- courts are the last place you want to decide matters of importance -- but it looks very unlikely. The case has done nothing to harm open source in the two years it has been grinding on: the chances of it becoming anything other than a footnote in software history are increasingly slim. As for SCO itself -- well, here's the last word on Jarndyce and Jarndyce from chapter 65 of Bleak House:
- "Mr. Kenge," said Allan, appearing enlightened all in a moment. "Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?"
"Hem! I believe so," returned Mr. Kenge. "Mr. Vholes, what do YOU say?"
"I believe so," said Mr. Vholes.
"And that thus the suit lapses and melts away?"
"Probably," returned Mr. Kenge."
Talkback
Your article states that "while there's no proof that IBM contravened any copyright law there is a chance that it didn't follow the contract between it and SCO that it had when it licensed Unix."
The problem with this assertion is that there is not and never was a contract between IBM and the SCO Group, nor was there between IBM and SCO's predecessor in interest the Santa Clara Operation. IBM's contract was with ATT. SCO has never shown that it acquired the IP in question when it bought certain UNIX rights from the Santa Clara Operation, nor has it even shown that the Santa Clara Operation ever owned the IP in question. That, by the way, is the subject of a current lawsuit between SCO and Novell. Although the latter suit has not been settled, the judge has said that SCO's ownership of anything relating to IBM's UNIX operations is questionable.