Hidden text shows SCO prepped lawsuit against BofA

The SCO Group filed lawsuits this week against DaimlerChrysler and AutoZone, but the Unix seller's attorneys also had prepared a complaint against Bank of America, according to a document.

A Microsoft Word document of SCO's suit against DaimlerChrysler, seen by CNET News.com, originally identified Bank of America as the defendant instead of the automaker. This revision and others in the document can be seen through powerful but often forgotten features in Microsoft Word known as invisible electronic ink.

A feature in the word-processing software tracks changes to documents, who made those changes, and when they were made. These notations typically are invisible to someone reading a Word document. But as some lawyers, businesspeople and politicians have learned the hard way, Word can also display so-called metadata in the document--including the original version and all subsequent changes. This information is available by viewing the document under "original showing markup" or "final showing markup."

The presence of hidden text in the SCO document is just the latest example of this workplace issue. According to a study by market research firm Vanson Bourne titled "The Cost of Sharing," 90 percent of documents in circulation began as something else, but 57 percent of respondents were not aware that metadata may still exist in the their document. Microsoft addresses the issue on its Web site but adds that its 2003 version of Office provides a feature that lets users "permanently remove" the hidden text from Word.

In the case of SCO's lawsuit against DaimlerChrysler, the Word document identified Bank of America as a defendant until Feb. 18 -- at 11:10 a.m., to be exact. The location for filing the suit also was switched from Bank of America's principal operations in California to Michigan, DaimlerChrysler's home state, on Feb. 27.

According to the document, it is unclear whether SCO was serious about suing the bank, whether it still intends to, or why the bank was dropped and replaced with DaimlerChrysler.

But the hidden text indicates that SCO spent considerable time building a case against the bank and that it also considered extending allegations filed against IBM to Big Blue's high-profile customers--in this case, Bank of America.

Representatives of Bank of America and SCO, including SCO's attorneys, declined to comment on the document.

SCO has stirred up a hornet's nest of opposition within the open-source community by contending that Linux contains proprietary source code owned by the company. Hackers have rendered SCO's Web site inaccessible for long periods. Picking apart the company's case and examining its motivations also has become a cottage industry on numerous Web blogs and Linux-related Web sites.

Corporate America has taken note as well, thanks largely to a warning letter that SCO sent last May to 1,500 of the world's largest companies, threatening that they could be legally liable for using Linux if they failed to obtain a license from the Utah-based company. SCO has also sued IBM, seeking damages of $5 billion.

What the invisible ink reveals

Examples of the changes made to the Word document that later became SCO's lawsuit against DaimlerChrysler include the following:

• On Feb. 18 at 11:10 a.m. "Bank of America, a National Banking Association" was removed as a defendant and "DaimlerChrysler Corp." was inserted.
• Three minutes later, this comment was removed: "Are there any special jurisdiction or venue requirements for a NA bank?"
• At the end of the lawsuit, "February" was listed as the filing date, although no exact date was given. SCO previously had said that it expected to file a lawsuit against a Linux user by mid-February.
• The document contains other alterations in the margins. For example, on Feb. 13 at 2:27 p.m. a question was inserted asking: "Did BA receive one of the SCO letters sent to Fortune 1500?". That apparently was a reference to the warning letters sent earlier by SCO.

In its final form, SCO's suit against DaimlerChrysler was filed in Michigan's Oakland County Circuit Court and alleges violations of the automaker's Unix software agreement with SCO. In the original version that listed Bank of America as a defendant, the focus was copyright infringement and violations of the Digital Millennium Copyright Act, which would be the domain of the federal courts.

SCO also cited alleged copyright infringement in the suit it filed in federal court Tuesday against AutoZone, but it did not include violations of the DMCA.

In the original version identifying Bank of America as a defendant, the document also included these allegations against the bank and Linux developers, including leading Linux figure Linus Torvalds:

• "Defendant acquired a license from IBM to use UNIX/AIX on or about December __, 2003 the ("BA UNIX/AIX License"). At the time of acquiring the BA UNIX/AIX License, Defendant knew or should have known: (a) that IBM?s license to distribute UNIX/AIX had been terminated by SCO pursuant to the UNIX/AIX Termination Notice and (b) that IBM?s distribution to it of UNIX/AIX software improperly included use of the UNIX Release 3.2 Copyrighted Materials"
• "(C)ertain of plaintiff's copyrighted software code has been materially or exactly copied by Linus Torvalds and/or others for inclusion into one or more distributions of Linux with the copyright management information intentionally removed."

In seeking relief from the courts, the original version of the document also said that it sought: "impounding all Linux software products in the custody or control of Defendant through the pendency of these proceedings;" and "statutory damages under the Third Cause of Action in a sum not less than $2,500 and not more than $25,000 for each and every copy and/or distribution of Linux made by Defendant."

This request was not made in the AutoZone or DaimlerChrysler suits.