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Don't ignore the fact that SCO could win

Michael Kanellos, CNET News.com CNET News

Published: 23 Jun 2003 09:57 BST

What if they're right?

That's the key question in the imbroglio over SCO's claims that IBM, among others, improperly used Unix code to develop Linux. To be honest, it's also the one question the open-source community -- or at least a fairly vocal subset of it -- largely refuses to address.

For all the pleadings and letters that will emerge from this maelstrom, SCO's claims are fairly simple: it owns the bulk of the intellectual property underlying Unix, and recently, some of its code has been spied in Linux. Actually, make that quite a bit of it, says SCO.

"I can see getting three, four, five, lines of code identical," said Chris Sontag, senior vice president of the company, pointing to a nearly full page of allegedly copied code. "If it was a few lines, I'd give it to you."

And it's not just the code. Programmer comments embedded in Linux -- quick, English-language descriptions that aren't subject to mathematical or programming rules -- are identical to those found in SCO's Unix code, according to SCO. There's even a typo in one of the commentaries in Unix System V that also appears in a Linux commentary, Sontag said.

Extracting the controversial code is not really a feasible solution. Because of the way intellectual property (IP) laws work, derivative products that use the allegedly pilfered code are also subject to liability. Anyone who bundles suspect products, or uses them, is also conceivably on the hook.

Most companies now facing this legal liability aren't deliberately -- or even negligently -- appropriating code, but that's the way the IP ball bounces.

The reaction of the Linux community to this has often been all spit and nails.

"He (McBride) is a traitor. Surely he wants to be involved in Linux, because his SCO Open Unix crud cannot compete," a reader wrote in an email to CNET News.com recently. "I have more self-respect than to give them any chance to speak after what they have done. SCO -- 'simply criminal organisation.'"

The comment is par for the course. Most detractors reckon that SCO is only filing the lawsuits out of desperation for financial gain or is playing into the hands of Microsoft.

Some contend that IBM, which wields the largest patent portfolio in the world, wouldn't steal intellectual property -- a position Sontag himself held initially, he said. Still others have defended the integrity of open-source developers.