SCO might recycle AT&T's Unix blunder

REPORTS HAVE SURFACED that SCO might be in violation of the GNU General Public License (GPL). eWEEK broke this story, writing:

"A source close to SCO, who spoke on condition of anonymity, told eWEEK that parts of the Linux kernel code were copied into the Unix System V source tree by former or current SCO employees."

According to eWEEK's confidential source, SCO's coders "basically re-implemented the Linux kernel with functions available in the Unix kernel to build what is now known as the Linux Kernel Personality (LKP) in SCO Unix."

The evidence for this seems to be sections of exact identical code right down to the variable names and comments. Gee, where have we heard claims like this, recently?

From SCO, claiming that Linux somehow contains bits of their holy Sys V code, that's where. How SCO could sue IBM after doing this is... simply, splutter, spit... nothing less than mind-blowingly, outrageous brass!

SCO might just give Eben Moglen of the Free Software Foundation what he has been seeking for years, a cornered victim willing opponent to test the enforceability of the GPL in court. In all previous instances, infringers have resolved their GPL related issues quietly.

If SCO really boosted source code from the Linux kernel to cobble up its "LKP" capability, enabling Linux applications to run under UnixWare(tm), and without including the Linux kernel's copyright notice, and licensing that facility under the GPL as required -- with all that entails -- then SCO is likely up to its scrawny neck in major copyright infringement.

Under the legal doctrine of "estoppel" (or "unclean hands", for layman), SCO could be found to have violated the same laws it seeks to employ. A different legal sense of "estoppel" prevents a litigant (and that would be SCO, in this dustup) from trying to litigate a claim already lost.

(Just for fun, the term "estoppel" doesn't have historical provenance -- it's been conjectured to have originated with some judge who had a very severe speech impediment. Either that, or a bunch of drunken lawyers. In anyroad, it means just "stopped" or "blocked" in interest of equity.)

Ahem, yes. How much trouble might SCO be facing? What does this mean?

How major, you ask? Well, for starters everyone who owns a copy of Linux will be able to sue SCO for withholding that source code in violation of the GPL, and -- should SCO's misappropriation be shown -- likely win.

By anyone's count, the population that owns Linux is in the millions.

Imagine, if you will, hundreds or thousands of people going down to the local small claims court and suing SCO for withholding the source code, which they are rightfully entitled to be provided under GPL's terms. As SCO's lawyers are helpfully named in its suit against IBM, there won't be any problem with figuring out where to have papers served. This just might be an intellectual property lawyer's worst nightmare, for SCO.

But the bottom line is that SCO seems to have made the same mistake that AT&T made long ago, that is, copying "free" source code into its product and stripping away the copyrights. That loose practice is precisely what spannered the Unix Systems Labs (USL) lawsuit against BSD Unix, about a decade ago. Then, the University of California took on AT&T/USL and won, in that BSD Unix rewrote three modules and changed a few more, and that court transcript was (and remains) sealed, to let USL slink off quietly licking its self-inflicted wounds. (That judge handed USL its head.)

USL then sold Sys V Unix to Novell, which further sold it to the earlier SCO. Caldera bought Unix from old SCO, then renamed itself as... SCO.

IBM likely recoils from the thought of buying out SCO because -- aside from refusing to reward such flimsy blackmail -- it might want to avoid "owning" Unix. It's almost like an Egyptian mummy's curse, it seems. µ

L'INQS
eWEEK
GPL

See Also
SCO releases draconian NDA
Novell accuses SCO of extorting money from the Linux community
SCO declares war on Linux
[Enough already... just bung "SCO" into our Search page. - Ed.]