SCO has shown analysts and journalists examples under nondisclosure agreements that it says prove its case that Linux's memory–allocation code was illegally transferred to the operating system from its copyrighted Unix code. But Columbia University law professor Eben Moglen-who also is counsel for the Free Software Foundation, an international group of programmers and free–software advocates-issued a report last week that disputes SCO's contention.
When the memory–allocation code was introduced in 1973 by AT&T into Unix version 3, the thinking at the time was that code couldn't be copyrighted, Moglen says. Caldera, the company that morphed into SCO, licensed the code in 2002, permitting free copying and redistribution, making it public domain, Moglen says. "Asserting copyright over the memory–allocation code now is the equivalent of copyrighting the St. James Bible and charging people licensing fees for printing or distributing it, much less reading it," he says.
SCO says that the memory–allocation code was illegally copied from Unix System V version 4.1 ES by a Unix licensee who has since removed the code from subsequent versions of its offering. Yankee Group analyst Laura DiDio, who saw the code, says she thinks SCO "seemed to make a compelling argument" but adds that "they were showing us snippets, and you cannot draw a definitive conclusion based upon that."
Code samples won't end the fight, says Blaney Harper, a partner in the law firm Jones Day. As business–technology execs wait for resolution, they're trying to stay out of SCO's litigious sights. Mike Vain, IT director for Fidelity National Financial, uses Linux to run some Web servers. "I won't do anything until the smoke clears," he says. The problem is that the smoke is stubborn.