SCO moves to limit Smoking Gun Memo damage

Don't look at the date

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SCO has moved to limit the fall-out from a recently unsealed memo, in which incoming Caldera boss Darl McBride was told that the company had no copyright claims on the Linux kernel. The memo said an audit had looked for, but failed to find a "smoking gun". A week later Caldera renamed itself The SCO Group, and three months later hired lawyer David Boies to lead a legal campaign based on its IP claims.

In effect, today's turn of events - in which SCO countered a pro-IBM memo with a pro-SCO memo - reprises an exchange between IBM and SCO lawyers played out last September when the sealed documents were referred to in court. This time we are able to see what they're talking about.

Today's memo is authored by Bob Swartz, whose work is summarized in the "No Smoking Gun" memo. Swartz conducted an analysis of Red Hat Linux 5.2 and compared it to UnixWare and OpenServer code. His conclusions are at odds with the NSG memo we reported yesterday.

Swartz himself draws three conclusions.

"First, many portions of Linux were clearly written with access to a copy of Unix sources," he writes. "Second there is some code where Linux is line for line identical to Unix…. Thirdly, there are also portions of the programs which appear to have been rewritten, perhaps for the purposes of obfuscating that the code is essentially the same."

SCO drew attention to the third point in a briefing issued to the press today. So was there smoke after all?

Alas, Swartz's own memo is dated October 4, 1999, almost three years earlier before the 'No Smoking Gun' summary of his work provided to McBride.

Summarizing Swartz's study in 2002, Michael Davidson wrote -

"Most of this work was automated using tools which were designed to to [sic] fuzzy matching and ignore trivial differences in formatting and spelling)."

Throw both memos into a time machine, which would reverse the dates, and the picture would look very different. Alas time machines are not permitted in US courts. As it is, we must assume that either SCO/Caldera revised its opinion, and after checking the lookalike code found it had no rights to make copyright claims, or that Michael Davidson misreported it entirely in 2002.

"There is, indeed, a lot of code that is common between UNIX and Linux (all of the X Window system for example) but invariably it turned out that the common code was something that both we (SCO) and the Linux community had obtained (legitimately) from a third party," Davidson wrote.

Which is more likely? ®

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