It occurred to me today that the absolute last thing SCO would want is for its suit against IBM to get to court. Why? Well, because in order to prove its case, it would have to show the source code as evidence. And evidence entered in a lawsuit becomes public record.

IBM would have the right to subpeona SCO's source code in an affirmative defense, and would be allowed to have expert witnesses — i.e. the entire Open Source community–review the evidence line by line. And the source code would be entered permanently into the public record once the case went to trial.

The only way to have such evidence sealed (correct me if I'm wrong here, lawyers in the audience) would be to file a motion with the judge in the case, or as a term of a pre-trial settlement with IBM.

No wonder SCO sought a 2005 trial date.

It's also no wonder that Linus Torvalds batted back an offer in SCO CEO Darl McBride's open letter to the Linux community to negotiate, or to review SCO's code after signing a non-disclosure agreement. As Torvalds points out in the InfoWorld article, signing an NDA would be something of a poison pill for future open source work. But there's no need to sign an NDA when the evidence will be public record in two years…if the suit actually makes it to trial.

Additionally, I've heard from more people that customers are considering filing RICO and mail fraud charges against SCO for sending them letters extorting, er, offering licensing agreements to prevent legal action. So SCO could get dragged into court before its IBM trial date and be forced to reveal its hand as part of its defense.