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Just days after The SCO Group escalated its legal battle with IBM over alleged violations of the two companies' Unix source code contract, open source advocate Eric Raymond has responded, saying he has evidence that could undermine some of SCO's legal arguments.

Raymond claims to have collected the names of 60 Unix users who are willing to sign affidavits that disprove SCO's contention that its Unix System V source code, which forms the basis of IBM's AIX Unix, contains trade secrets.

Raymond declines to comment on what he plans to do with his evidence, citing legal reasons.

Familiar Claims

Misappropriation of trade secrets is one of six causes of action listed by SCO in its filings with the District of Utah U.S. District Court relating to the case. Raymond claims the Unix source code has been so loosely guarded over the last 20 years that it is now impossible to legally prove SCO's code contains trade secrets.

"There's a pattern of what a lawyer would undoubtedly interpret as a negligent failure to enforce trade secrecy," Raymond says. "They're claiming they have a trade secret while also having a history of failing to enforce the restrictions that would back up that claim."

The open source advocate has been collecting information from Unix users relevant to this case since the end of May, when he set up a Web site. The page asks readers to contact Raymond if they had "read access to proprietary Unix source code... under circumstances where either no non-disclosure agreement was required or whatever non-disclosure agreement you had was not enforced."

So far about 150 people have responded, Raymond says.

SCO Disputes Charge

Raymond's efforts amount to "a big waste of time," according to Chris Sontag, SCO's senior vice president and general manager of SCOsource.

"What he's doing is baseless because the important point is that the Unix System V source code has never been provided to any entity without a full source code agreement with full confidentiality, and very strict provisions," Sontag says.

Even if individuals could access the System V source, as Raymond maintains, that would not signal the end of SCO's trade secret claims, Sontag says. It would merely constitute a violation of SCO's source code agreement on the part of whichever company allowed the source to be viewed, he adds.

Raymond disputes Sontag's comments.

"It's public information that AT&T, its successors, and Unix vendors such as Sun routinely sold source licenses to universities which then exposed the code to thousands of students and faculty without requiring an NDA or confidentiality pledges from anyone," he said in an e-mail.

The No Secrets site might help IBM's case, depending on how Raymond's Linux users got their access to the code, says Jeffrey Neuburger, a technology lawyer with Brown Raysman Millstein Felder & Steiner, who has been following the SCO-IBM case.

If users legitimately had access to the System V source code, it "would certainly undermine [SCO's] trade secret and misappropriation claims," Neuburger says. "If these 60 people that have signed the affidavits have stolen the source code that wouldn't help."

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