SCO: Fish or Cut Bait

By Steven Vaughan-Nichols  |  Posted 2005-07-19

SCO: Fish or Cut Bait

It never occurred to me until lately that there might be nothing at all to SCOs Linux claims.

Ive often thought that SCO didnt have a real case in claiming that IBM had moved Unix code via IBMs AIX Unix system to Linux. Ive also thought that there was no way SCO would win such a case. But I always thought that SCO had something, somewhere that was the basis of their claims.

Maybe I was wrong.

The newly unveiled internal SCO memos on Linux and Unix seem to say that SCO knew there was no Unix code in Linux.

Yes, the recently unsealed 1999 Swartz memo stated that many portions of Linux were clearly written with access to a copy of Unix sources." But, Robert Swartz, a Unix on x86 developer, also wrote, "It is possible that some of the code came from Berkeley or other third party. It is also possible that the code is exempted by the BSDI/Berkeley settlement."

Three years later, in 2002, SCO developer Michael Davidson reviewed the 1999 studys results. His conclusions? "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."

Davidson, by the by, wasnt just any SCO developer. He had written a popular program, lxrun, that enabled some Linux binaries to run on SCO Unix and Suns Solaris on Intel. This is a programmer who knew both Linux and Unix at a deep level.

Earlier, SCO made other claims stating that specific files had been taken from Unix and put into Linux. Back on Aug. 18, 2003, SCOs CEO, Darl McBride, offered a slide presentation of supposed examples of infringing literal copying from SVR4 to Linux.

McBride was wrong. One example was from BSD Unix and the other code snippet was under public domain.

What happens when SCO goes down in flames? Click here to read Steven J. Vaughan-Nichols thoughts.

Unbowed, on Dec. 22, 2003, SCO sent out a letter to numerous companies claiming that several dozen SCO copyrighted ABI (application binary interface) files had been swiped into Linux.

But, as open-source leaders quickly pointed out, there was a good reason why some of that code looked alike.

"Do you know that there is not one bit of executable code in those files? Theyre pretty much all macros and declarations forced by POSIX and other technical standards," said Eric Raymond, co-founder of the Open Source Initiative.

None of this is rocket-science. Its barely computer science.

You look at one page, you look at the other. Are they the same? Or, at least do they show the same idea just copied off in different code? So far, SCO has yet to show a single line of demonstrably stolen code.

Next Page: Red Hats claim is worrisome.

Red Hats claim is


As Simon Frankel, an IP (intellectual property) litigator with the San Francisco law firm of Howard Rice Nemerovski Canady Falk & Rabkin told me about the 2002 e-mail, "This is a potentially remarkable development in an enormously significant lawsuit."

Why? Because, "Here is an e-mail that—at least—on its face—appears to reflect an internal investigation at SCO that concluded Linux did not include any proprietary material from Unix in its source code. If the e-mail turns out to mean what it says, this could be a significant blow to the basic premise of SCOs case."

Yes, I think you could say that.

In particular, I think that this could lead to real trouble for SCO because when Red Hat sued the Unix company because of its Unix/Linux copyright claims one of its charges was that SCO was violating the Lanham Act.

For those of you, like me, who arent lawyers, the Lanham Act, among other things, covers false advertising.

Red Hat is claiming that SCO deliberately made false claims about Linuxs copyrights that not only hurt Red Hats Linux business but in so doing promoted SCOs own Unix operating systems and its Unix IP licensing.

Indeed, not only did Davidson write that there were no Unix copyright violations in Linux, he also wrote that part of "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."

Now, Im no expert, but it seems to me that these memos have blown a hole big enough in SCOs defenses against the Red Hat suit to sink the company.

Maybe SCO does have a proof positive copyright ace up its sleeve. Stranger things have happened. However, with these memos out, SCO had better show something soon to back up its claims or its going to lose its case with Red Hat sooner rather than later.

IBM? Well, Ive said it before, Ill say it again, while I dont think SCO has a leg to stand on in the IP arena, I do think they have a shot, not much of one but a shot, at winning on contractual matters dealing with the ill-fated Project Monterey.

The Red Hat case, though? Well, if it turns out the way I think it will, SCO may not last long enough to face IBM in 2007. Senior Editor Steven J. Vaughan-Nichols has been using and writing about operating systems since the late 80s and thinks he may just have learned something about them along the way. He can be reached at

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