Re: [tlug] Re: is there a real possibility that Sco get what it claims?

[Jonathan Byrne <jq@example.com>]

On Wednesday 04 February 2004 01:03 am, Stephen J. Turnbull wrote:

> property are extremely high.  A person's whose hearsay I trust (as far
> as I can imagine trusting hearsay) says he knows someone who has seen
> code which is licensed from SCO in Linux.

Even if we take it as true (which being "friend of a friend" hearsay, we need 
more likely to take it with grains of salt, although the fact that you give 
it credibility tends to make me also give it credibility, for I know you are 
not easily convinced by hearsay), it raises the question, "Who put it into 
the kernel?"  Presumably not IBM, judging by:

"> I don't think it will help SCO much against IBM, because the code is a
> device driver for a specific piece of now-obsolete hardware, not IBM's."

The most likely answers to this question are:

1) The hardware vendor (if said vendor had access to the source code in 
question);

2) An employee of old SCO;

3) An employee of new SCO/Caldera;

4) An employee of Novell;

IANAL, but:

If it is 2 or 3, then the burden will fall on SCO to prove that it was 
contributed to Linux without authorization.  If it is 4, they will need prove 
that Novell did not have a right to contribute the code.  If it is 1, their 
case may be easier, as long as they can establish the vendor did not have 
permission to contribute it, or maybe even if IBM just can't establish that 
the vendor did have permission.  However, this raises the question "If the 
vendor infringed copyright X number of years ago and no one noticed or 
objected, is IBM (or anyone else) in any way liable?"  I don't know the 
answer to that, but I'm sure it will be answered in court if the original 
violation was by a hardware vendor with source access.

I'm also curious, does the hearsay source say whether the alleged infringing 
code comes from a historical UNIX source, or from a Unixware source?  If the 
former, that could poke a hole in the SCO case as well, since so much of it 
was circulated freely and/or later distributed under a free license.  If the 
latter, that could be more difficult, but if they cannot prove liability by 
IBM (which I suspect won't be easy), they will still face an uphill fight to 
come away with much more than a court order to remove said device driver.  If 
that's all they get, and IBM is exonerated of all claims against it, IBM's 
countersuit will probably still be enough to put SCO out of business.

Jonathan