According to a transcript of a March 7 hearing in the SCO vs. IBM case, SCO's claims of infringement based on IBM's donations to Linux come down to 326 disputed lines of code in the kernel. IBM attorney David Marriott made the claim as he argued for summary dismissal of SCO's 4-year-old suit.
"The alledgedly infringing code is trivial in size, Your Honor," IBM's attorney David Marriott told the U.S. District Court Judge Dale Kimball in Salt Lake City. It's "less than one 5,000th of a percent of the kernel. ... It is the equivalent of one spectator in 20,000 in an arena the size of the former Delta Center," he said, making a reference to the athletic arena in Salt Lake City.
The attorney for SCO countered that IBM had decided to talk only about the Linux kernel, while SCO's charges apply to the larger operating system as well as the kernel.
IBM presented the judge with a code book with a few disputed lines highlighted in yellow. SCO presented the judge with thousands of offending lines colored red. The kernel lines are not found in a single block of executable code but are scattered through a dozen files as "headers," the nonprocessed code at the start of a code segment that labels it and that tells a computer or programmer what comes next in the program. The use of copyright and patents in connection with software is frequently associated with the algorithms and functionality of executable code that the owner claims is an invention or unique to his work.
IBM's Marriott complained to judge Kimball that it had taken a long time since SCO's March 6, 2003, filing of the case to identify the lines. Marriott argued that header files don't contain code or processing logic that's original and copyrightable. They contain structure information, definitions and descriptive information that is dictated by external aspects of the program. Many of the 326 lines are comments or programmer statements on what happens next in the program.
Marriott said 121 of the 326 lines are "define" headers, setting a definition for the meaning of the title of a code section. Marriott said "EPERM for permission error" is a header for an error message that tells a user he does not have the permission to do something he's attempted to do. Such a header doesn't meet the originality standard required for something to be copyrightable, Marriott argued.
Some headers also specify what operations will be performed by the code that follows them, such as "message send" for the function of sending a message or "find." Twelve of the 326 lines cited are function headers, Marriott said.
In addition, there are 164 lines of "structure" declarations, Marriott said.
SCO attorney Stuart Singer disagreed that any of the designated lines were insignificant. "IBM is seeking to narrow the declaration it seeks. ... They're able to say only 326 lines are at issue, when in reality everything in this book ... is still in the case," he said. SCO CEO Darl McBride has made public statements that up to a million lines of what it claims is SCO-owned Unix code has found its way into Linux. "Linux doesn't work without Streams. ... It won't work without these header files," Singer asserted. Streams is a Unix module that passes messages from an application down a software stack to the network driver, or vice versa.
Singer argued that summary judgment couldn't be issued in the case because the larger issue of who owned the Unix copyright still hasn't been decided.