Unsealed SCO Email Reveals Linux Code is Clean

rm69990 writes "In a recently unsealed email in the SCO vs. IBM case, it appears that an outside consultant, hired by SCO in 2002, failed to find copyright violations in the Linux Kernel. This was right around the time Darl McBride, who has before been hired by litigious companies as CEO, was hired. It appears that before SCO even began its investigation, they were hoping to find a smoking gun, not believing that Linux could possibly not contain Unix code. Apparently, they ignored the advice of this consultant."

Comments

Re:So we like consultants now?

[gsfprez]

this was ORIGINALLY a lawsuit about the derivative works from a company working with a Unix license that IBM bought.

what are you talking about? In their first filing,

http://www.groklaw.net/article.php?story=200407041 70212250

their first cause of action was "Linux is full of UNIX, which belongs to us"

First cause of action - (Misappropriation of Trade Secrets--Utah Code Ann. 13-24-1 et seq.)

this is in reference to their placing UNIX code in linux... read the previous 103 statements to see what they are alleging.

in their second (and current) complaint, they keep it up!

http://www.groklaw.net/article.php?story=200402070 22922296

3. A variant or clone of UNIX currently exists in the computer marketplace called "Linux." Linux is, in material part, based upon UNIX source code and methods.

4. The UNIX software distribution vendors, such as IBM, are contractually and legally prohibited from giving away or disclosing proprietary UNIX source code and methods for external business purposes, such as contributions to Linux, or from otherwise using UNIX for the benefit of others. This prohibition extends to derivative work products that are modifications of, or derivative works based on, UNIX System V source code or technology. IBM is violating this prohibition, en masse, as though no prohibition or proprietary restrictions exist at all with respect to the UNIX technology. As a result of IBM's wholesale disregard of its contractual and legal obligations to SCO, Linux 2.4.x and 2.6.x and the development Linux kernel, 2.5.x, are replete with protected technology. As such, the Linux 2.4.x and Linux 2.5.x and 2.6.x kernels are unauthorized derivatives of UNIX System V.

the are, have, and continue to claim that Linux is full of Unix, and that its a derivative because IBM put UNIX code in Linux.

That's the basics of their case, in a few words... they are hiding that contention behind their contracts with IBM. But how did they breach contract with SCO? - SCO alleges that they put UNIX in Linux.

If there is no illegal UNIX in Linux, then they've not breached any contracts, have they? To have breached contract, they would have had to have infringed on SCO's "UNIX copyrights"

Copy of the actual email.

[Anonymous Coward]

Here's the text of the email, courtesy of Groklaw.

Groklaw is intermittantly slow for me (database problems or whatever) and so I want to make sure this can be read by all.

I'd have to say this looks pretty damning, all said--it shows they found nothing and persisted anyway... Lovely.

From: Reg Broughton
Sent: Tuesday, August 13, 2002 10:05 PM
To: Darl McBride
Subject: Fwd: Re: Patents and IP Investigation

DARL

we can probably track down Bob Swartz if you want to dig further. Based on our last conversation, this summary of the code investigation probably closes that discussion.

This of course does not invalidate any of your statements on Caldera owning the central IP, and being the core provider of key technology and IP over the years into the UNIX and Linux communities.

REG

Date: Tue, 13 Aug 2002 13:26:51 -0700
From: Michael Davidson
Organization: Caldera International
X-Mailer: Mozilla 4.6 [en] (Win98; I)
X-Accept-Language: en
To: Reg Broughton
Subject: Re: Patents and IP Investigation

The actual investigation itself was done by an outside consultant (Bob Swartz) hired by SCO. I worked with him and reviewed his findings.

My recollection is that Bob produced an initial proposal for the project which outlined the methodology to be used, and he *may* have also provided a final report, but I don't have copies of either.

The project was a result of SCO's executive management refusing to believe that it was possible for Linux and much of the GNU software to have come into existance without *someone* *somewhere* having copied pieces of proprietary UNIX source code to which SCO owned the copyright. The hope was that we would find a "smoking gun" somwhere in code that was being used by Red Hat and/or the other Linux companies that would give us some leverage. (There was, at one stage, the idea that we would sell licenses to corporate customers who were using Linux as a kind of "insurance policy" in case it turned out that they were using code which infringed our copyright).

Note that the scope of the project was limited to looking for evidence of copyright infringement (we didn't consider patents because SCO didn't own the rights to any patents, and more general IP issues were just too vague - besides SCO was *sure* that it was going to find evidence of copyright violations which are comparatively straightforward to prove once you have found them)

An outside consultant was brought in bacause I had alrady voiced the opinion (based on very detailed knowledge of our own source code and a reasonably broad exposure to Linux and other open source projects) that it was a waste of time and that we were not going to find anything.

Bob worked on the project for (I think) 4 to 6 months during which time he looked at the Linux kernel, and a large number of libraries and utilities and compared them with several different vesrions of AT&T UNIX source code. (Most of this work was automated using tools which were designed to to fuzzy matching and ignore trivial differences in formatting and spelling)

At the end, we had found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever.

There is, indeed, a lot of code that is common between UNIX and Linux (all of the X Windows system, for example) but invariably it turned out that the common code was something that both we (SCO) and the Linux community had obtained (legitimately) from some third party.

md