[linux-elitists] [jv@zork.net: [pigdog] SCO goes public with news, private with evidence]

Martin Pool mbp@samba.org
Wed Aug 6 18:12:22 PDT 2003

On  6 Aug 2003, Phil Hughes <fyl@a42.com> wrote:

> So, being the nice person you are, you return their spare tire and get a
> replacement of your own. So, if SCO tells me I stole their code, I think
> I will return the stolen part--if they tell me what it is.

Many contracts contain clauses saying that both "parties will act in
good faith in completing this contract", and "time shall be of the
essence".  I seem to recall reading that in some cases (in Australia),
judges have leaned towards seeing this as implied clauses in all

SCO are not saying which modules apparently infringe.  Since they can
no longer hold a trade secret in that code, it seems that the only
reason for them not to make that information public is a desire not to
resolve the matter any sooner than is necessary.  

(At least this seems to be the consensus of elitists.  Could SCO make a
counterargument?  It seems like even if there were infringing code but
it was removed today, they could still bring a case for past damages.)

To state the obvious, SCO seem not to be acting with good faith or
expeditiously to resolve the alleged infringement.  It seems that the
Linux community as a whole would act in good faith if they were able,
by removing any copied code that was pointed out.

Is there an equity principle in US law or in the copyright code that
parties should act in good faith and promptly?  If so, are SCO
delaying resolution longer than is necessary and therefore in breach
of that principle?


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