SCO E-Mail a Smoking Gun?

In a statement this morning, SCO refuted a claim that a former employee allegedly sent an e-mail that indicated the company’s investigation found that Linux does not infringe on SCO’s intellectual property.

Pamela Jones’ Groklaw Web site posted the alleged e-mail from Michael Davidson, which was originally sent Aug. 13, 2002, to SCO employee Reg Broughton, who then forwarded it to SCO CEO Darl
McBride.

The e-mail details a comparison that had been made by Bob Swartz, an
outside consultant hired by SCO, of a code comparison that was made over
the period of several months between the then-current version of Linux and
versions of AT&T’s Unix source code that SCO held.

“At the end, we had found absolutely *nothing*. ie no evidence of any
copyright infringement whatsoever,” Davidson wrote in his e-mail. “There is,
indeed, a lot of code that is common between UNIX and Linux (all of the X
Windows 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 some third party.”

This morning, SCO issued a statement, as well as a PDF of a
memo sent by Swartz to SCO employee Steve Sabbath dated Oct.
4, 1999.

“This memo shows that Mr. Davidson’s e-mail is referring to an
investigation limited to literal copying, which is not the standard for
copyright violations, and which can be avoided by deliberate obfuscation, as
the memo itself points out,” SCO said in its statement. “Even more
importantly, this memo shows that there */are/* problems with Linux.”

SCO goes on to note that the memo indicates that additional investigation
would be required to locate all of the problems. Both the IBM and AutoZone
cases were cited by SCO as examples where they were continuing in that
discovery process.

“Thus, even aside from the fact that SCO’s central contract claims in the
IBM litigation involve later Linux versions and different conduct, it would
simply be inaccurate — and misleading — to use Mr. Davidson’s e-mail to
suggest that SCO’s internal investigation revealed no problems,” SCO stated.

The company is suing IBM for allegedly using SCO’s Unix code in the Linux kernel. The core of SCO’s case rests on the premise that IBM
misappropriated licensed Unix System V source code found in AIX and Dynix.

In June 2003, SCO terminated
IBM’s System V license for AIX, which was followed by the termination of the
license for Dynix in August 2003.