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A 2004 UNIX/Linux Code Comparison for SCO Showed Essentially Nothing - Update on Baystar
Tuesday, March 01 2011 @ 05:13 PM EST

A consultant hired by SCO in 2004 to compare UNIX and Linux, with the thought he could be used as an expert at trial, says that, after days and days, his comparison tool found "very little correlation". When he told that to SCO, it paid him and he never heard from SCO again.

Interesting, huh? And how odd that SCO went on to sue folks for alleged copyright infringement even after that happened, don't you think?

This new information appears in a new book to be published in April and now available as a "Rough Cuts" version on the Safari online book service. The book is titled "Software IP Detective," by Bob Zeidman, and in Chapter 26, he tells us this anecdote.

Here's a screenshot of the book's cover:

And here's the information about the test the author ran:

The text of the footnote reads like this:
For the sake of full disclosure, I was hired by SCO for a month in 2004 as a consultant and potential testifying expert witness in this case. The code analysis had already been under way for a while by other consultants on the case. My CodeMatch tool for measuring source code correlation was fairly new at that time. I was really excited and saw this as an opportunity to prove my tools and “make my reputation in this field.” The SCO attorneys gave me some code samples from SCO UNIX and Linux to compare. CodeMatch chugged along for days before generating a report showing very little correlation. The attorneys thanked me, paid me my very generous retainer (that they had put into my contract), and I never heard from them again.

So, my head is spinning, because what I'm thinking is: does this demonstrate that SCO knew there was no basis for their copyright infringement claims against IBM, Novell, AutoZone, and the world, at least by 2004? We'd have to do discovery on the matter to know for sure, but if they deliberately buried evidence, I would imagine it could impact damages due to SCO's victims, not just from SCO but conceivably from SCO's lawyers as well, should it be established that the litigation was frivolous and SCO knew it way back in 2004. I'm sure SCO's lawyers will have a long song and dance about it to deny it all, but it's certainly a huge red flag to me.

And I'm guessing IBM and any future defendants SCO might go after will bring this matter up. For one thing, some BSD code is in Linux appropriately, and there is also the concept of "de minimis" in copyright infringement law. Another question that pops into my mind is this: did SCO tell its other experts about this result?

Early in the SCO saga, Groklaw did a similar code comparison, and so did Eric Raymond. I'm sure others did too, and we couldn't find anything to shake a stick at either. Why, then, did SCO go forward? And why are folks trying to buy the assets of this pitiful company? If they are dreaming of a big payday from suing people, I think they are dreaming. Anyway, I thought you'd be interested in this anecdote and all that it implies. What it says to me is that it doesn't matter who owns the copyrights. Linux doesn't infringe them.

Update: Do you remember Baystar? It invested in SCO briefly, because Microsoft would be happy if they did, as Larry Goldfarb testified was his motivation. Here's the latest on Larry Goldfarb from the San Francisco Chronicle:

The Securities and Exchange Commission has charged Marin County hedge fund manager and philanthropist Lawrence "Larry" Goldfarb with secretly diverting $12 million in investor money to other uses including an investment in a San Francisco record company and charitable contributions.

Goldfarb runs Baystar Capital Management, a Larkspur firm that manages private investment funds including Baystar Capital II. The SEC alleges that since at least 2006, he and his firm have been misusing the proceeds from that fund's highly profitable "side pocket" investments....

He and Baystar Capital Management settled the SEC charges without admitting or denying guilt. They agreed to pay about $14 million in disgorgement and interest to investors. Goldfarb also agreed to pay a $130,000 penalty and not associate with an investment advisor or broker for five years.

An update to the article says that he and his company "have entered into a deferred prosecution agreement with the U.S. Attorney" whereby Goldfarb admitted to one count of wire fraud and that $12 million in investor funds were transferred to two entities he owns which invested in -- among other things -- Marin real estate and OM Records. "The U.S. Attorney's office in San Francisco will not charge him if he complies with the terms of the agreement, which include paying $12.1 million in restitution to BayStar investors and a three-year ban from the investment industry."

One has to watch those pure financial animals, y'all.

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