Here are excerpts from the Deposition of SCO employee Erik W. Hughes [PDF]. It's a large PDF, so be patient. Our thanks to Frank Sorenson for picking up this deposition and scanning it for us.
Hold on to your hats. He confirms that the Linux Kernel Personality did indeed include Linux kernel code, and as a result, both UnixWare 7.1.2 and 7.1.3 included Linux kernel code until May of 2003.
While Hughes testifies that in addition to the obvious candidates (Caldera's Linux distributions), two releases of UnixWare included the Linux kernel in some way, as part of the LKP -- and of course, such inclusion would have to be under the GPL -- yet the question that is left unanswered, tantalizingly, by the deposition is this: in what way was the Linux kernel "included" in LKP? Did the UnixWare kernel somehow make use of the Linux kernel binary? If so, how -- and would the use be intimate enough to have created a "work based on the program" as the GPL puts it? If not, how was the kernel "included"? Was kernel source code reused in the UnixWare kernel, as one anonymous source claimed to eWeek's Peter Galli long ago? We don't have totally firm answers to these questions from this deposition alone, but IBM probably does, and we're definitely getting warmer. And more and more, it looks like SCO's goose is cooked.
No wonder SCO is now talking about trying to survive as a tech company even if they lose the litigation. It also is now apparent why SCO tried to say the GPL is unconstitutional, void, voidable, etc., anything to try to make it not be binding on them. Please don't anyone ever again tell me that we don't need the GPL. Look at the role this champion license has played in SCO v. the World.
You will also enjoy the questions and answers about Linux being available long after SCO said they had stopped distributing. You probably won't enjoy hearing SCO employees calling geeks "longhaired smellies."
Here is the segment from page 4 of the PDF about the LKP:
Q. To your knowledge, do any of the other products -- or do any of the products listed on Page 16, in addition to Linux Technology Preview, include the 2.4 kernel?
A: There was a release of SCO UnixWare release 7.1.2 that included the Linux kernel personality and SCO Linux-release 7.1.3 included the Linux kernel personality. At first when it first shipped it did include the Linux kernel packages which were subsequently removed.
Q: Which kernel packages did they include?
A: The Linux kernel packages. I -- I don't know which specific ones.
Q: Would it have been a Version 2.4 or higher?
Q: During what period of time did those products -- that is, the Linux kernel personality -- include the Linux kernel? . . .
A: UnixWare 7 Release 7.1.2 shipped somewhere after the consummation of the transaction between Caldera and acquiring the assets from SCO, so the date is late 2001 or early 2002.
Q: Okay. And what about 7.1.3? . . .
A: Yes. It -- 7.1.3 included the Linux operating system, including the Linux kernel packages, until SCO suspended Linux and removed those packages from the media kit.
Q: Which was when?
A: Which was May of last year.
Q: So until May of last year, Unix -- those two UnixWare 7 releases included the Linux kernel?
A: That's correct.