Analysts to SCO: No thanks to code review offer

Analysts to SCO: No thanks to code review offer

Analysts are balking at The SCO Group's offer to view its proof that there is illegal Unix code in Linux, with one calling the move a publicity stunt.

Meanwhile, Linux creator, Linus Torvalds, has said that he has no plans to look at the code and that the battle between SCO, IBM Corp. and Novell was on par with a rancorous episode of the Jerry Springer Show.

In an effort to convince the world that the Linux operating system was created in part with its Unix code, SCO said it planned, next week, to begin showing analysts its evidence - provided those parties sign a nondisclosure agreement (NDA).

But Giga Information Group analyst, Stacey Quandt, said she has discussed SCO's offer with her legal counsel, and if she signed an NDA, it might hinder her ability to write about it. She could get subpoenaed as well. Quandt called the offer a PR stunt.

"(SCO) should tell everybody what they have," said Quandt, who has advised clients of Giga to continue with their Linux adoption.

Other analyst firms expressed similar reservations about playing an active role in SCO's $US1 billion lawsuit against IBM, that alleges misappropriation of trade secrets and other claims. SCO has warned some 1500 businesses that they may be using Linux at their legal peril.

One person who won't sign a nondisclosure agreement is Torvalds, who created Linux in 1991.

Torvalds, in an email response, said there's "no way" he could sign a non-disclosure agreement with SCO to review the code. "Others have asked and haven't gotten anything, so I don't see much point," he said. "They don't want to tell; they want to sue. I'm told that it will come out in discovery during the actual suit at some point."

As for what he thinks of SCO's actions, Torvalds in an email interview compared the fight between SCO, IBM and Novell to bad TV.

"Quite frankly, I found it mostly interesting in a Jerry Springer kind of way. White trash battling it out in public, throwing chairs at each other. SCO crying about IBM's other women. ... Fairly entertaining," said Torvalds.

Gartner analyst, George Weiss, who recently recommended minimising Linux in complex, mission-critical systems until the merits of SCO's claims were clear, has been talking to SCO and is also leaning against accepting the offer.

Weiss said SCO was making its case based on "vague inferences" and asking analysts to do the same.

"It's stepping right into their shoes," he said.

IDC is also mulling the offer from SCO to review source code, but it has reservations.

"I'm not sure that showing us the code would prove anything to me, because I don't know where it came from," IDC analyst, Dan Kusnetzky, said.

Despite the concerns expressed by Gartner, Giga and IDC, Darl McBride, SCO's CEO, said that five or six analysts had expressed interest in viewing the code under NDAs.

He said that some "highly recognisable" members of the open-source community had also asked about the NDA process, but he would not give their names.

Starting next week, SCO would "be happy to show the code," he said.

The value of review by analysts at Giga, IDC, Gartner or any independent source was questionable and legally risky for anyone who agreed to it, a partner at the law firm Foley & Lardner, said Michael Overly, said.

Anybody who reviews the source code can expect to be deposed in the IBM lawsuit.

"Do they want to lose all that employee time and face potential adverse publicity?" asked Overly.

But if an analyst said there were copyright infringements, other Linux firms could make claims against the analyst's firm because the opinion could depress Linux earnings.

Those companies could seek to find out whether the analyst was negligent in his analysis of the code, Overly said.

Even if there is similar code, that did not mean there was infringement, especially under copyright law "fair use" provisions, Overly said.

"If I take a piece of code that someone has written, take it verbatim but expand on it and use it for a completely different work, that may or not be copyright infringement," he said.

Overly said a review of the code by anyone other than a judge "means absolutely, positively nothing" in determining the merit of SCO's claims.

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