win, SCO must establish that it has a protectable interest in
UNIX source code. That may be difficult, for a number of reasons:
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.
- AT&T published UNIX without proper notice prior to the
effective date of the 1976 Copyright act.
- Caldera, SCO's predecessor,
made more recent
public releases of early UNIX code.
Those actions put large
amounts of UNIX code
into the public domain.
- Other aspects of UNIX are so functional as to
be subject to the merger doctrine, or dictated by
international standards, interoperability requirements, and other
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
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.
- Protected purchaser
- Fair use
sum up, then, (and remember:
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.