SCO e-mail casts new light on Linux infringement lawsuit

The release of an e-mail from a SCO consultant that found "no evidence of any copyright infringement whatsoever" of SCO's code by Linux companies has focused a spotlight on SCO's copyright lawsuit against IBM.

The e-mail, published by the legal Website, Groklaw, was from SCO Senior Vice President Reg Broughton to SCO's Chief Executive Officer Darl McBride, and included a message from SCO engineer Michael Davidson to Broughton titled "Re: Patents and IP Investigation."

In his e-mail, Davidson describes a previous SCO investigation headed by outside consultant Bob Swartz to determine whether any Linux companies had used copied pieces of SCO's Unix source code, said China Martens, in a report from IDG News Service.

Daividson concluded in the email, "At the end, we had found absolutely *nothing*, ie no evidence of any copyright infringement whatsoever."

The investigation came about as "a result of SCO's executive management refus-ing to believe that it was possible for Linux and much of the GNU software to have come into existence without *someone* *somewhere* having copied pieces of proprietary Unix source code to which SCO owned the copyright," Davidson wrote in the e-mail. "The hope was that we would find a 'smoking gun' somewhere in [the] code that was being used by Red Hat and/or the other Linux companies that would give us some leverage."

Dan Kusnetzky, vice president for system software for IDC, cautioned that the e-mail did not address all possibilities of code copyright infringement. ""I'm not sure it's a complete analysis," he said. "The case still needs to be judged by competent people and they need all the information to do it."

SCO responded to the e-mail with a statement and a memo from Oct. 4, 1999, to Senior Vice President Steve Sabbath from Swartz. Doug Michels, SCO CEO and president at the time, was copied on the message.

"This memo shows that Mr. Davidson's e-mail is referring to an investigation limited to literal copying, which is not the standard for copyright violations," SCO said in its statement. "Even more importantly, this memo shows that there *are* problems with Linux. It also notes that additional investigation is required to locate all of the problems, which SCO has been continuing in discovery in the IBM and Autozone one cases." The company added using Davidson's e-mail to suggest SCO's internal investigation revealed no problems would be "inaccurate and misleading."

In Swartz's memo, he talks of trying to determine whether there was "any material from Unix in the Red Hat Linux release 5.2" and buying a copy of Red Hat from Best Buy Co. and comparing it against multiple copies of Unix including SCO's OpenServer 5.0. He notes, "We found two kinds of copying, the first where there were a number of lines that were identical, on a character by character basis, and those where the code was different, but where the code or its struc-ture were substantially similar."

He concludes that such similarities are "clearly disturbing," adding, "It is also clear that in certain instances whoever wrote the code started with Unix source and modified it. Thus there can [be] no doubt that parts of the Linux distribution were derived from Unix."

SCO and Groklaw are old adversaries, with the online legal site providing cov-erage that was often highly critical of every stage of the software vendor's litigation. At one time, SCO even planned to set up a web site to counter Groklaw's coverage and tell its own side of its legal battles, but the company ultimately decided to do that within the site, according to Blake Stowell, a SCO spokesman.

Copyright © 2005 IDG Communications, Inc.