SCO: Unix code copied into Linux

McBride's accusation cuts to the heart of the open-source movement's legal and philosophical underpinnings.

As part of its billion-dollar lawsuit against IBM, which charges that Big Blue misappropriated SCO's Unix trade secrets and built them into Linux, SCO hired several consultants to compare the source codes of the two operating systems.

"We're finding...cases where there is line-by-line code in the Linux kernel that is matching up to our UnixWare code," McBride said in an interview. In addition, he said, "We're finding code that looks likes it's been obfuscated to make it look like it wasn't UnixWare code--but it was."

McBride refused to detail which specific code had been copied but said there were several instances--"some of them go back several years, and others are recent"--and said the copying was "not minor." SCO, however, won't publish what it's found.

"We feel very good about the evidence that is going to show up in court. We will be happy to show the evidence we have at the appropriate time in a court setting," McBride said. "The Linux community would have me publish it now, (so they can have it) laundered by the time we can get to a court hearing. That's not the way we're going to go."

The claim could cause consternation in the open-source community, which develops Linux and countless other projects through a collaborative, sharing approach that contrasts strongly with the proprietary methods of companies such as Microsoft. The open-source movement prides itself on its programmers' independent creativity and on the fact that its methods have produced software that rivals programs created by closed efforts at the most powerful computing companies.

Despite the technological and cultural successes of the cooperative movement, it still must convince companies that its methods are legally sound.

"This shows one of the weaknesses of the open-source movement," said Mark Radcliffe, a copyright attorney with Gray Cary. "You're all dependent on trust. Unfortunately, a number of people involved in the process do not have a great degree of respect for intellectual property. It's fine if it's personal, but if you decide to implement that by saying 'I don't give a damn about this intellectual property,' everything that touches it is now screwed."

If SCO can link the source code copying to IBM actions, it could have a smoking gun that would dramatically bolster its lawsuit. But regardless of what SCO can show about IBM's involvement, proving inappropriate use of copyrighted code could open infringement claims against a wide number of companies, including Red Hat, SuSE, and others that have used Linux in software and hardware products.

FUD slingers?
Even with help from Linux boosters and from contributors with as much sway as IBM, open-source advocates face critics such as Microsoft Chief Executive Steve Ballmer, who said of Linux last week that "customers will never really know who stands behind this product."

Others are not so worried.

SCO's claims "could definitely sensitize the open-source community in general," said Illuminata analyst Jonathan Eunice, "but before it creates any kind of vastly disruptive effect, (SCO is) going to have to not only make a claim, they're going to have to prove a claim."

That will be difficult, in particular because so much Unix intellectual property has come out in papers, books, articles and other forms over the years, Eunice said. "It was a very leaky ship and has been for quite some years," he said.

Open-source programming tends to be a transparent process, and despite the fact that there are millions of lines of open-source

		Vision Series Open source Dig deeper into open-source and free software with Michael Tiemann, Dan Frye, Bruce Perens and Richard Stallman.

Bruce Perens, a former leader of the Debian version of Linux and an unofficial spokesman for open-source programmers, derided SCO chief McBride's claims as an attempt to foster fear, uncertainty and doubt--"FUD," in computing parlance.

"He's saying this stuff exists, but he's not willing to reveal it. Well, maybe we'll hear about this in court, but frankly, maybe we won't, because they'll try to seal it all," Perens said. "It sounds like he's trying to FUD Linux in general."

And taking the offensive, Perens added, "Copying works both ways. I want to see some proof they haven't copied Linux source code into SCO Unix."

Although SCO sells a version of Linux based on the version put out by SuSE, a German seller of the operating system, most of its revenue comes from its Unix products, which were originally developed by AT&T but made their way to SCO via Novell and a company now named Tarantella.

Linux is a close relative of Unix. The collection of software known today as Linux piggybacked on the Gnu's Not Unix (GNU) effort begun by Richard Stallman in the 1980s to independently create a clone of Unix.

An issue for Linux sellers
SCO's accusation of source code copying also could have implications for SuSE and other companies that sell their own versions of Linux, such as Red Hat. Although McBride said SCO is concentrating its legal energies on the IBM case right now, those companies aren't immune from Unix-Linux issues.

"There's a point in time that has to be resolved with those guys too," McBride said, "but that's not currently what our legal approach is about."

Red Hat, though, says it's unconcerned.

"Given that we have extensive legal resources put forth into making sure we respect the valid intellectual property rights of companies, we are not concerned with the statements that have been made" that Unix code appears in Linux, said Red Hat spokeswoman Leigh Day. "We do take intellectual property very seriously."

But using another company's code does pose problems for Red Hat and SuSE, said John Ferrell, an intellectual property attorney with Carr & Ferrell.

"To the extent that there is copyrighted code in the Linux operating system borrowed from Unix, I think these companies have a problem," Ferrell said. A copyright infringer could be forced to pay $100,000 per infringement and reimburse the copyright holder for lost profits, Ferrell said.

SCO doesn't have a desire to take legal action against companies that distribute Linux, McBride reiterated. But that doesn't preclude the possibility. Indeed, the company didn't have a desire to sue IBM either, McBride said, but it has done just that.

Regardless of whether the issue is hashed out in the courts, Linux companies will have to grapple with it, McBride said. "For Linux to move forward in a wide-scale fashion, I believe the intellectual property issues have got to be resolved," he said.

"There is not an intellectual property policeman sitting in at the check-in counter saying this is OK, this is not OK. It is a free-for-all," McBride said. "At the end of the day, there's not a basis for making sure code is clean when it goes in there."

There's a simpler solution to the issue, Perens said. "They should show us what code they have problems with. We'll take a look at it or we'll just replace it. Keeping us in the dark is just silly," he said.

An impassioned McBride, however, said there's a matter of principle at stake. SCO Group can't just let its intellectual property be used willy-nilly.

"This is not about 10 lines of code, it's about 20 years of extremely valuable intellectual property we're trying to protect...Am I supposed to lie down and not say anything about it?" McBride said. "There's a certain point here where you stand up for what's right and let the chips fall where they will."