Linux Kernel Code May Have Been in SCO UnixWare

Random BedHead Ed writes "Groklaw has some interesting new information online. In an entry today, PJ has posted the Deposition of Erik W. Hughes (PDF), a SCO employee. Hughes' 2004 testimony reveals that the Linux Kernel Personality (LKP) of UnixWare somehow used kernel code. Exactly how it was used is not clear. UnixWare was released under a proprietary license, but the General Public License under which Linux is distributed requires derivative works to use the same license. As PJ says, it's "now apparent why SCO tried to say the GPL is unconstitutional" back in 2003."

Comments

Re:Oooooh the juicy irony.....

[Zeinfeld]

Sorry removal of the offending code usually suffices. You are repeating a false premise that MS and others try to spread to create fear, uncertainty and doubt (about GPL'ed software), i.e. a.k.a.: FUD.

It is a bit more complex than that.

In the ordinary course of things you can probably convince a court that inadvertent infringement on a small scale should not result in a major damages award. This is after all what most people on the pro-Linux side have been maintaining all along. The minute that SCO actually state with specificity the code they claim is stolen in Linux the code will be gone in a New York Miniute.

But the whole SCO case amply demonstrates that Microsoft has a point. The GPL is certainly good for creating a SCO like FUD lawsuit that can be used to obtain discovery powers and burn huge quantities of legal fees. The best corporate lawyers I have worked with are the ones who avoid the lawsuits in the first place. From that point of view the GPL is a real tar baby and RMS has told me personally that this was essentially his intention all along.

I don't think that things are quite as simple for SCO in this particular circumstance. The problem is that they are going to the court arguing that IBM has damaged SCO by allegedly stealling copyright material from them. If IBM can establish that SCO has been stealling copyright material from others then there are some major consequences.

The first of these is that SCO has presumably had to execute an affidavit in which they claim that they have good title to the code in question. If IBM can prove that title is questionable they score important points. If IBM can prove that SCO acted in bad faith with respect to the title then there is a sizable chance that the whole suit gets thrown out.

At this point of course we are still waiting for SCO to actually state with specificity what parts of the code infringes. And I strongly suspect that SCO will never tell.