OR . . . one might also 'logically infer" that 'every single time' the FSF approached a company about violating the GPL or LGPL the alleged violation was so clear-cut that the company attorneys advised capitulationg. (Another possibility is that compliance w/ FSF demands was deemed cheaper than litigation.) But this doesn't mean that all future alleged vioaltions will be similarly clear, or that a future alleged violator won't find it worthwhile to challenge to FSF on some yet-unforseen legal theory. (Not that this would be a bad thing - one way or another, the GPL will only be strengthened by legal challenges.)
Amen. Questioning things in the search for truth is per se good. If the GPL is defective in any way, we ought to want to know that so we can fix it. If its not, then mere questioning won't hurt it one bit.
Although the GPL has not been tested in the courts yet, you can bet your bottom dollar that it eventually will be (more than once). Win or lose, this will only strengthen the GPL in the long run.
"The word "free" indicates to me "the freedom to do whatever the hell you want", but this is a far cry from the actuality of the FSF."
Please. How grown up does one have to bo to realise that no two persons (or entitites) can have complete and absolute freedom in all cases. Reason: The possibility of conflicting exercise of such rights. Logic 101: Take it.
All the FSF/GPL tries to do is facilitate certain freedoms that it considers important in the greatest number of people. Of course, in order to do this, they must restrict certain other right, that they place less importance in. This is logically necessary.
Sorry guys, I didn't mean to spew FUD. I am a supporter of the GPL. I would be happy to oblige you by pointing out a couple of ambiguities but that would really create some FUD, wouldn't it?
One thing that you have to realize, though, is that a contract is not interpreted by a court in a vacuum. Rather, courts generally interpret contracts according to the circumstances under which they were made, and under which the dispute arose. In so doing, courts apply the laws of the state that govern the contract. (Generally, the laws of the several states differ.)
[hint.]
Now, I never meant to imply that the GPL is defectively ambiguous in any generally important regard. Still, the meaning and effect of the GPL will ultimately be determined over time by the courts, on a case-by-case basis and the results may vary in sometimes unexpected ways according to the facts and laws that govern each case.
Assuming that your No. 1 is answered in the affirmative, the answer to No. 2 is also, clearly, yes. Reason: Even if plaintiff/claimant could not show that the infringing activity directly harmed the monetary value of his product (e.g., because he gives it away for free), the Copyright Act authorizes an award of damages measured by the infringer's profits attributable to the infringing activity. (Also, "statutory damages" are sometimes available and are not necessarily tied to monetary harm to plaintiff/claimant.)
It depends on what you mean by "finding against." A court might construe the GPL to mean something other than what you think it does. There are *many* unresolved ambiguities concerning the GPL and predicting what it might mean and how it may operate under peculiar circumstances is sometimes *very* difficult.
Re:Is FSF ever going to go for Damages? (& how
on
FSF Threatens GPL Lawsuit
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· Score: 4, Informative
Ah, but statutory damages are only available to copyright claimants who have *registered* their copyright claims prior to the alleged infringements. Otherwise, you can apply for registration after the fact and settle for actual damages (compensatory; profits) and injunction.
Register those copyrights, boys.
What are you talking about? Sure, you can theaten to file a civil lawsuit (unless it part of some otherwise unlawful conduct, e.g., antitrust conspiracy). Maybe what you're thinking about is threatening to report criminal conduct *unless* the alleged perpetrator does as you say (e.g., pay you money). That would be extortion and it is illegal.
Re:How much do you think MS paid for the SCO licen
on
OSI vs SCO
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· Score: 1
"According to today's Seattle Post-Intelligencer, some observers say the "deal could impede Linux..... The agreement... will put between $10 million and $20 million into the hands of The SCO Group, of Lindon, Utah, said a source close to the deal."
http://www.washingtonpost.com/wp-dyn/articles/A145 17-2003May20.html?nav=hptoc_tn
What the heck are you talking about "assign copyright to SCO" ? SCO's complaint is insufficient to put into issue any copyright claim and therefore the court has no business adjudicating any. Unless and until SCO's pleading is amended, one thing that the court definitely will NOT do is declare any copyright in favor of SCO (or, as you say, 'assign a copyright to SCO.')
First Answer: To the extent that there ever was any bona fide trade secret, the matter ceased to be a trade secret the minute that it was unrestrictedly published to the world via the linux kernel code. Thereafter, SCO can't tell [the kernel developers] what to take out, not because they need to maintain a secret, but because there is no longer any protectable trade secret and they have no right to do so.
Second Answer: [Don't understand question.]
Are there any sys v elements in the kernel itself? (Just trying to get my mind around the problem.)
Re:Why SCO might be holding out on evidence
on
What if SCO is Right?
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· Score: 3, Interesting
Maybe, but what kind of lame-ass company counsel would advise his client to pay off on a copyright infringement claim where: 1) the claimed infringed matter is unknown; 2) no known certificate of copyright registration has been issued with respect to the claimed infinrged matter; 3) no copyright is claimed in the claimed infringed matter in any pending litigation, and; 4) the claimed infringed matter was, at least on its face, distributed under the GPL?
Any company who pays on such a claim deserves to go belly up and any lawyer who advises same should be shot twice (obligatory bullet plus one).
. . . from the Corporate Buttock. This guy's either on the take or plainly irresponsible. What is this shit:
"The common wisdom is that SCO is bluffing in its charges that Linux vendors and users ripped off SCO's Unix intellectual property. But we don't actually know that. They could have a case. "
Could they? *Why* could they? Do you know why? Do your sources know why? Why does your article not indicate why? Are you a journalist or a FUD shitter?
And this: "And if the proprietary Unix code can't be made into open source, then open source developers would have to turn their attentions away from other projects and turn instead to developing replacement code for the proprietary code, delaying development of those other projects. "
Huh? What makes you think that it couldn't be done during a coffee break? Oh, perhaps you have a source that indicates the nature and degree of the claimed SCO code? (But if so, you article fails to mention it.) Or perhaps your just an alarmist fuck bucking for regular employment with Microsoft?
Even a minimal showing of actual copying would be 14 carat FUD. I don't think that SCO could pass up that opportunity if they had it and, therefore, I doubt that there's any substantial copying involved.
This circumstance, together with the 'IP violations all over the kernel' remark may well point up the truth of the matter. You see, the phrase "IP violation" is extremely vague. Generally it could mean, among other things, a copyright violation of a trade secret misappropriation. But here it sounds more like trade secret stuff. Check it out: SCO could argue that its "technology" (i.e., ideas) are manifest throught the linux kernel w/o having to show any actual copying. That is, the linux kernel source code could be argued to embrace SCO's "methods" albiet with different code. But whether or not this is true, such would not constitute any copyright violation. Copyright generally protects authors' particular expressions of ideas only, not the underlying ideas themselves. Hence, SCO's complaint contains no copyright infringement claims.
On the other hand, if all SCO is alluding to by this remark is trade secret matter, then it is of no concern to the linux community at large. The reason is that it is not wrongful to use other people's trade secrets; it is only wrongful to misappropriate them. Here, the only entity that could plausibly have committed a misappropriation is IBM, by virture of its contract w/ SCO. Everyone else has done nothing but use information that is widely publically available w/o knowledge of the allegedly once wrongful publication of the trade secrets by IBM. Current publications of SCO's kernel 'contributions' do not constitute misappropriation of trade secret because the matter is no longer secret, and hasn't been for a long time. Accordingly, further and future use and publication of the SCO kernel 'contributions' cannot be enjoined.
Linux Wins!
The law is even smarter than you imagine.
on
What if SCO is Right?
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· Score: 2, Informative
Courts will not allow parties to written contracts (e.g., GPL) to avoid their clear and express obligations thereunder obo any lame excuse such as you propose. The contractual mistake doctrine would require that the recipients of SCO's GPL'd linux should have reasonably known of SCO's mistake before allowing SCO to escpae the consequences of the GPL. Now, given that SCO's putative kernel 'contributions' were secret, how the hell are they going to show that? What more, even if they could make the requisite showing, it is highly doubtful that any court in equity would hold any linux user liable for using SCO-contaminated code (as per your own 'mindless automaton' argument). Finally, as I keep posting, RTFGPL, do a little thinking, and realize that the minute SCO takes the position that the GPL does not apply to their own Caldera Linux release (including their 'own' kernel code) then it forfeits all of its rights under the GPL which means that its distribution of Caldera Linux constitutes copyright infringement (against the various kernel developers). A court in equity will not let SCO at once deny and embrace the GPL. PLEASE: 1) Read the GPL; 2) Consider your own arguments; 3) Mix; 4) Apply reason; 5) Properly Conclude
Dude. If SCO denies that the GPL applies to the portion of the kernel code that they own, or otherwise attempt to impose "additional restrictions" on the Caldera Linux that they released, then SCO forfeits all of its rights to copy/modify/distribute the linux kernel and its having done so within the last 3 years constitutes actionable COPYRIGHT INFRINGEMENT. Thus, the position that you argue is quite untenable by SCO. QED.
Please. If your "accidental license" theory was valid, not only would the GPL be worthless, but *all* software licenses would be of dubious validity. Fortunately, courts are not so stupid. There's a legal (equitable) doctrine called estoppel. Check it out.
Besides, SCO would be screwed even worse of they tried to deny that the GPL applied to their 'inadvertent contributions' to the linux kernel code. (See my post below.)
The point that everyone seems to be missing is that SCO cannot deny that the GPL applies to their own Caldera Linux distributions, including their claimed proprietry kernel code. The reason is that the only right that SCO ever had to copy/modify/distribute the linux kernel in the first place was the GPL itself (otherwise it had no such right.) Now, under the GPL upon which SCO relies, the right to copy/modify/distribute *depends* on the licensee (here, SCO) granting the GPL with respect to its own code.
So, SCO cannot plausibly deny that the GPL applies to their proprietary kernel code because if they do so, they forfeit the right to copy/modify/distribute all the rest of the kernel code. As a result, SCO would become liable for copyright infringement to all the kernel developers that didn't work for SCO (how many are there?)
Such an act could destroy SCO right away. As a result, I don't think SCO will ever actually take this position.
Two Points: 1) SCO's "Trade Secret" claims pose ABSOLUTELY NO problem for the OS community; 2) SCO's release of linux kernel source inclduing their claimed proprietary code under the GPL binds them, *even if it was done inadvertently.*
Reason: 1) Matter must be secret in order to constitute a "trade secret" the misappropriation of which would constitute a tort (cf. contractual trade secret) and linux kernel code is certainly no secret; 2) RTFGPL, there is no exception for inadvertent releases. Also, SCO would be estopped from denying GPL based on widespread and consequent reliance of licensees. Besides, if you read the GPL, any denial of GPL wrt Caldera Linux would subject SCO to claims of copyright infringement by anyone and everyone who contributed to the linux kernel that Caldera released. (Under GPL, SCO's right to copy/modify/distribute parts of linux kernel that they did no author/modify DEPENDS on them granting GPL wrt to parts that they do contribute.) (Duh.)
If SCO had extricated its unix code from their linux distributions, then it ought to be a simple matter to determine what the claimed proprietary code actually is. (I'm not a coder, but I'm guessing just use GNU diff?) Anyway, I'd be surprised if IBM's people haven't already checked this.
. . . is this. Suppose SCO/Caldera does have some copyrightable source contribution somewhere in the linux kernel, and suppose that they attempt to assert exclusive rights in such code by, among other things, denying that the GPL applies with respect to it as it was contained in their Caldera Linux releases. (They have apparently already done this, at least impliedly so.) The necessary result of action such as this would be invalidation SCO's right to copy/modifiy/distribute all other Linux/GNU elements contained in Caldera Linux under the GPL. (See terms of GPL.) Consequently, anyone and everyone claiming copyright in any GPL'd software contained in Caldera Linux could SUE SCO FOR INFRINGEMENT!
People in this thread talk about getting back at, ruining or punishing SCO. There: I've just provided the recipe for doing it. (As a non-coder, I may consider this my contribution to the OS community.)
. . . would be to the effect that SCO's kernel code 'contribution' is significant and original enough to constitute a copyrightable 'work of authorship.' For example, a literary work of a small and unoriginal nature such as "see Jane run" would not be copyrightable subject matter. It remains to be seen whether SCO's claimed kernel code contribution is any more substantial or original than that.
Anyone who makes a business from linux/gnu and thinks that SCO's actions may injure them should seriously consider a lawsuit against SCO. Bare minium relief could be sought: declaratory judgment to the effect that your (and your clients') use of linux/gnu infringes none of SCO's rights.
on what you mean by "underestimating." SCO may or may not have some viable breach of contract claim against IBM, but who cares. Even were SCO to prevail on some contractual misappropriation of trade secret claim, such would have no ultimate effect on linux/gnu use at large. Reason: 1) the public generally has no contractual relationship with SCO; 2) In the absence of an actual secret, there can be no tort of misappropriation of trade secret (linux kernel not secret); 3) no software patent is claimed by SCO; 4) no copyright is at issue the IBM litigation and even if it were: a) it remains questionable whether SCO's claimed code is substantial and original enough to constitute copyrightable subject matter and; b) any such copyrightable material is probably now subject to the GPL by virture of SCO's own distribution of Caldera Linux, and; 3) even in the remote event that some non-GPL SCO-copyrighted code exists in the kernel, the minute that the kernel developers learn of it, they'll simply change it. (Actually there are many more defenses to any copyright claim that SCO may eventually make.)
So, while SCO might have some plausible claim against IBM sufficient to warrant a temporary rise on stock prices (who knows?), the ultimate non-effect of SCO's action on the linux/gnu users and community cannot be underestimated as it is nill.
Slashdot Mirror
OR . . . one might also 'logically infer" that 'every single time' the FSF approached a company about violating the GPL or LGPL the alleged violation was so clear-cut that the company attorneys advised capitulationg. (Another possibility is that compliance w/ FSF demands was deemed cheaper than litigation.) But this doesn't mean that all future alleged vioaltions will be similarly clear, or that a future alleged violator won't find it worthwhile to challenge to FSF on some yet-unforseen legal theory. (Not that this would be a bad thing - one way or another, the GPL will only be strengthened by legal challenges.)
Amen. Questioning things in the search for truth is per se good. If the GPL is defective in any way, we ought to want to know that so we can fix it. If its not, then mere questioning won't hurt it one bit. Although the GPL has not been tested in the courts yet, you can bet your bottom dollar that it eventually will be (more than once). Win or lose, this will only strengthen the GPL in the long run.
"The word "free" indicates to me "the freedom to do whatever the hell you want", but this is a far cry from the actuality of the FSF." Please. How grown up does one have to bo to realise that no two persons (or entitites) can have complete and absolute freedom in all cases. Reason: The possibility of conflicting exercise of such rights. Logic 101: Take it. All the FSF/GPL tries to do is facilitate certain freedoms that it considers important in the greatest number of people. Of course, in order to do this, they must restrict certain other right, that they place less importance in. This is logically necessary.
Sorry guys, I didn't mean to spew FUD. I am a supporter of the GPL. I would be happy to oblige you by pointing out a couple of ambiguities but that would really create some FUD, wouldn't it? One thing that you have to realize, though, is that a contract is not interpreted by a court in a vacuum. Rather, courts generally interpret contracts according to the circumstances under which they were made, and under which the dispute arose. In so doing, courts apply the laws of the state that govern the contract. (Generally, the laws of the several states differ.) [hint.] Now, I never meant to imply that the GPL is defectively ambiguous in any generally important regard. Still, the meaning and effect of the GPL will ultimately be determined over time by the courts, on a case-by-case basis and the results may vary in sometimes unexpected ways according to the facts and laws that govern each case.
Assuming that your No. 1 is answered in the affirmative, the answer to No. 2 is also, clearly, yes. Reason: Even if plaintiff/claimant could not show that the infringing activity directly harmed the monetary value of his product (e.g., because he gives it away for free), the Copyright Act authorizes an award of damages measured by the infringer's profits attributable to the infringing activity. (Also, "statutory damages" are sometimes available and are not necessarily tied to monetary harm to plaintiff/claimant.)
It depends on what you mean by "finding against." A court might construe the GPL to mean something other than what you think it does. There are *many* unresolved ambiguities concerning the GPL and predicting what it might mean and how it may operate under peculiar circumstances is sometimes *very* difficult.
Ah, but statutory damages are only available to copyright claimants who have *registered* their copyright claims prior to the alleged infringements. Otherwise, you can apply for registration after the fact and settle for actual damages (compensatory; profits) and injunction. Register those copyrights, boys.
What are you talking about? Sure, you can theaten to file a civil lawsuit (unless it part of some otherwise unlawful conduct, e.g., antitrust conspiracy). Maybe what you're thinking about is threatening to report criminal conduct *unless* the alleged perpetrator does as you say (e.g., pay you money). That would be extortion and it is illegal.
"According to today's Seattle Post-Intelligencer, some observers say the "deal could impede Linux. .... The agreement ... will put between $10 million and $20 million into the hands of The SCO Group, of Lindon, Utah, said a source close to the deal."
http://www.washingtonpost.com/wp-dyn/articles/A145 17-2003May20.html?nav=hptoc_tn
What the heck are you talking about "assign copyright to SCO" ? SCO's complaint is insufficient to put into issue any copyright claim and therefore the court has no business adjudicating any. Unless and until SCO's pleading is amended, one thing that the court definitely will NOT do is declare any copyright in favor of SCO (or, as you say, 'assign a copyright to SCO.')
First Answer: To the extent that there ever was any bona fide trade secret, the matter ceased to be a trade secret the minute that it was unrestrictedly published to the world via the linux kernel code. Thereafter, SCO can't tell [the kernel developers] what to take out, not because they need to maintain a secret, but because there is no longer any protectable trade secret and they have no right to do so. Second Answer: [Don't understand question.]
Are there any sys v elements in the kernel itself? (Just trying to get my mind around the problem.)
Maybe, but what kind of lame-ass company counsel would advise his client to pay off on a copyright infringement claim where: 1) the claimed infringed matter is unknown; 2) no known certificate of copyright registration has been issued with respect to the claimed infinrged matter; 3) no copyright is claimed in the claimed infringed matter in any pending litigation, and; 4) the claimed infringed matter was, at least on its face, distributed under the GPL? Any company who pays on such a claim deserves to go belly up and any lawyer who advises same should be shot twice (obligatory bullet plus one).
. . . from the Corporate Buttock. This guy's either on the take or plainly irresponsible. What is this shit: "The common wisdom is that SCO is bluffing in its charges that Linux vendors and users ripped off SCO's Unix intellectual property. But we don't actually know that. They could have a case. " Could they? *Why* could they? Do you know why? Do your sources know why? Why does your article not indicate why? Are you a journalist or a FUD shitter? And this: "And if the proprietary Unix code can't be made into open source, then open source developers would have to turn their attentions away from other projects and turn instead to developing replacement code for the proprietary code, delaying development of those other projects. " Huh? What makes you think that it couldn't be done during a coffee break? Oh, perhaps you have a source that indicates the nature and degree of the claimed SCO code? (But if so, you article fails to mention it.) Or perhaps your just an alarmist fuck bucking for regular employment with Microsoft?
Even a minimal showing of actual copying would be 14 carat FUD. I don't think that SCO could pass up that opportunity if they had it and, therefore, I doubt that there's any substantial copying involved. This circumstance, together with the 'IP violations all over the kernel' remark may well point up the truth of the matter. You see, the phrase "IP violation" is extremely vague. Generally it could mean, among other things, a copyright violation of a trade secret misappropriation. But here it sounds more like trade secret stuff. Check it out: SCO could argue that its "technology" (i.e., ideas) are manifest throught the linux kernel w/o having to show any actual copying. That is, the linux kernel source code could be argued to embrace SCO's "methods" albiet with different code. But whether or not this is true, such would not constitute any copyright violation. Copyright generally protects authors' particular expressions of ideas only, not the underlying ideas themselves. Hence, SCO's complaint contains no copyright infringement claims. On the other hand, if all SCO is alluding to by this remark is trade secret matter, then it is of no concern to the linux community at large. The reason is that it is not wrongful to use other people's trade secrets; it is only wrongful to misappropriate them. Here, the only entity that could plausibly have committed a misappropriation is IBM, by virture of its contract w/ SCO. Everyone else has done nothing but use information that is widely publically available w/o knowledge of the allegedly once wrongful publication of the trade secrets by IBM. Current publications of SCO's kernel 'contributions' do not constitute misappropriation of trade secret because the matter is no longer secret, and hasn't been for a long time. Accordingly, further and future use and publication of the SCO kernel 'contributions' cannot be enjoined. Linux Wins!
Courts will not allow parties to written contracts (e.g., GPL) to avoid their clear and express obligations thereunder obo any lame excuse such as you propose. The contractual mistake doctrine would require that the recipients of SCO's GPL'd linux should have reasonably known of SCO's mistake before allowing SCO to escpae the consequences of the GPL. Now, given that SCO's putative kernel 'contributions' were secret, how the hell are they going to show that? What more, even if they could make the requisite showing, it is highly doubtful that any court in equity would hold any linux user liable for using SCO-contaminated code (as per your own 'mindless automaton' argument). Finally, as I keep posting, RTFGPL, do a little thinking, and realize that the minute SCO takes the position that the GPL does not apply to their own Caldera Linux release (including their 'own' kernel code) then it forfeits all of its rights under the GPL which means that its distribution of Caldera Linux constitutes copyright infringement (against the various kernel developers). A court in equity will not let SCO at once deny and embrace the GPL. PLEASE: 1) Read the GPL; 2) Consider your own arguments; 3) Mix; 4) Apply reason; 5) Properly Conclude
Dude. If SCO denies that the GPL applies to the portion of the kernel code that they own, or otherwise attempt to impose "additional restrictions" on the Caldera Linux that they released, then SCO forfeits all of its rights to copy/modify/distribute the linux kernel and its having done so within the last 3 years constitutes actionable COPYRIGHT INFRINGEMENT. Thus, the position that you argue is quite untenable by SCO. QED.
Please. If your "accidental license" theory was valid, not only would the GPL be worthless, but *all* software licenses would be of dubious validity. Fortunately, courts are not so stupid. There's a legal (equitable) doctrine called estoppel. Check it out. Besides, SCO would be screwed even worse of they tried to deny that the GPL applied to their 'inadvertent contributions' to the linux kernel code. (See my post below.)
The point that everyone seems to be missing is that SCO cannot deny that the GPL applies to their own Caldera Linux distributions, including their claimed proprietry kernel code. The reason is that the only right that SCO ever had to copy/modify/distribute the linux kernel in the first place was the GPL itself (otherwise it had no such right.) Now, under the GPL upon which SCO relies, the right to copy/modify/distribute *depends* on the licensee (here, SCO) granting the GPL with respect to its own code. So, SCO cannot plausibly deny that the GPL applies to their proprietary kernel code because if they do so, they forfeit the right to copy/modify/distribute all the rest of the kernel code. As a result, SCO would become liable for copyright infringement to all the kernel developers that didn't work for SCO (how many are there?) Such an act could destroy SCO right away. As a result, I don't think SCO will ever actually take this position.
Two Points: 1) SCO's "Trade Secret" claims pose ABSOLUTELY NO problem for the OS community; 2) SCO's release of linux kernel source inclduing their claimed proprietary code under the GPL binds them, *even if it was done inadvertently.* Reason: 1) Matter must be secret in order to constitute a "trade secret" the misappropriation of which would constitute a tort (cf. contractual trade secret) and linux kernel code is certainly no secret; 2) RTFGPL, there is no exception for inadvertent releases. Also, SCO would be estopped from denying GPL based on widespread and consequent reliance of licensees. Besides, if you read the GPL, any denial of GPL wrt Caldera Linux would subject SCO to claims of copyright infringement by anyone and everyone who contributed to the linux kernel that Caldera released. (Under GPL, SCO's right to copy/modify/distribute parts of linux kernel that they did no author/modify DEPENDS on them granting GPL wrt to parts that they do contribute.) (Duh.)
If SCO had extricated its unix code from their linux distributions, then it ought to be a simple matter to determine what the claimed proprietary code actually is. (I'm not a coder, but I'm guessing just use GNU diff?) Anyway, I'd be surprised if IBM's people haven't already checked this.
. . . is this. Suppose SCO/Caldera does have some copyrightable source contribution somewhere in the linux kernel, and suppose that they attempt to assert exclusive rights in such code by, among other things, denying that the GPL applies with respect to it as it was contained in their Caldera Linux releases. (They have apparently already done this, at least impliedly so.) The necessary result of action such as this would be invalidation SCO's right to copy/modifiy/distribute all other Linux/GNU elements contained in Caldera Linux under the GPL. (See terms of GPL.) Consequently, anyone and everyone claiming copyright in any GPL'd software contained in Caldera Linux could SUE SCO FOR INFRINGEMENT! People in this thread talk about getting back at, ruining or punishing SCO. There: I've just provided the recipe for doing it. (As a non-coder, I may consider this my contribution to the OS community.)
. . . would be to the effect that SCO's kernel code 'contribution' is significant and original enough to constitute a copyrightable 'work of authorship.' For example, a literary work of a small and unoriginal nature such as "see Jane run" would not be copyrightable subject matter. It remains to be seen whether SCO's claimed kernel code contribution is any more substantial or original than that.
Anyone who makes a business from linux/gnu and thinks that SCO's actions may injure them should seriously consider a lawsuit against SCO. Bare minium relief could be sought: declaratory judgment to the effect that your (and your clients') use of linux/gnu infringes none of SCO's rights.
on what you mean by "underestimating." SCO may or may not have some viable breach of contract claim against IBM, but who cares. Even were SCO to prevail on some contractual misappropriation of trade secret claim, such would have no ultimate effect on linux/gnu use at large. Reason: 1) the public generally has no contractual relationship with SCO; 2) In the absence of an actual secret, there can be no tort of misappropriation of trade secret (linux kernel not secret); 3) no software patent is claimed by SCO; 4) no copyright is at issue the IBM litigation and even if it were: a) it remains questionable whether SCO's claimed code is substantial and original enough to constitute copyrightable subject matter and; b) any such copyrightable material is probably now subject to the GPL by virture of SCO's own distribution of Caldera Linux, and; 3) even in the remote event that some non-GPL SCO-copyrighted code exists in the kernel, the minute that the kernel developers learn of it, they'll simply change it. (Actually there are many more defenses to any copyright claim that SCO may eventually make.) So, while SCO might have some plausible claim against IBM sufficient to warrant a temporary rise on stock prices (who knows?), the ultimate non-effect of SCO's action on the linux/gnu users and community cannot be underestimated as it is nill.