SCO v. End Users: Conclusion

To win, SCO must establish that it has a protectable interest in UNIX source code. That may be difficult, for a number of reasons:
If the prior litigation n3 between Unix System Labs and the BSDi organization is any indicator, SCO will have an  uphill battle establishing that they have any "protectable interest" in source code that may also appear in the Linux kernel tree.

If a court finds that SCO has a protectable interest, they must then show that the code is in Linux due to copying. Some of the same issues raised in the initial inquiry are at play again, along with SCO's release of its own Linux distribution. The kernel is, after all, "open source"; SCO can hardly claim that they had no way of knowing that they were distributing their proprietary property on their own web site, especially when that distribution continued long after the start of the IBM suit. SCO was giving away with the left hand what it was demanding money for, after the fact, with the right. Even so, an especially generous trier of fact might still save SCO from itself by "forgiving" such lapses.

To prevail at that point, the defendant has to prove things unrelated to the history of the code.

A commercial end user can attempt these defenses:

  1. Protected purchaser
  2. Fair use
The low-end end user may escape the charge of "copying" altogether. Because most home users don't make use of the enterprise features of the kernel that SCO is claiming, they won't be infringing the claimed code, even in the limited sense of "copying" to RAM. And a non-commercial claim to fair use is possible.

To sum up, then, (and remember: IANAL) SCO's demands against end users are as far fetched as they initially appear. A copyright claim against any of the earlier links in the chain has more chance of success than an action against an end user.
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