Friday, June 27, 2003

Charles Cooper: I'd love to get his reaction after SCO produces documents with keystroke-by-keystroke copies of proprietary IP -- including typographical mistakes -- which subsequently made its way into the open-source community. [Scripting News] Commentators on both sides of this argument fail to consider a more interesting, gray-area possibility: that some software components released by various under the GPL for GNU/Linux might inadvertently share lines of code with "Unix code." Cooper's (and SCO's) claim of "keystroke-by-keystroke copies" is misleading because it does tell us how those keystrokes got into the two source files. If components were originally developed for Unix by programmers with legitimate access to the Unix source code, with would have been difficult for header files and utility functions not to be shared between the components and the main Unix source trunk, given that the components were being developed as extensions of a proprietary Unix system and the possibility of GPL release was far into the future. I cannot imagine that IBM did not run a monster diff between Linux distros and the Unix sources it has access to create its defense, and it would be hard to believe that they would be so adamant if they did not feel satisfied with the results. Therefore, the more interesting possibility is that the claimed infringements are on lines of code that flowed from Unix licensees like IBM back to the Unix main trunk as bug fixes and performance improvements, as well as into the licensees' own components now released under the GPL. SCO might just not have the source code history to know how those shared lines got there, and hope that the court will be as clueless about the ambiguity of a single diff as Cooper seems to be. Or they could claim that those lines were derivative work of the original Unix source, even though they were written by employees of the targets of its action. We might end up with an interesting and frustrating case around the notion of derivative work, that could come down to who has the most accurate source code control system to back their claims. 9:42:08 AM