In Judge Dale Kimball's July 16, 2008 Order, he explained the terms of the agreement between Sun and SCO in 2003, the agreement that gave Sun the right to open source Solaris. There is a detail in the Order that some may not have noticed:

Section 10 of the 2003 Sun Agreement also sets forth SCO's obligation to indemnify Sun for any claim brought against Sun asserting that the Section 4 licensed technology infringes the rights of any third parties. Section 10 further provides that if the intellectual property rights in the technology become the subject of a claim of infringement, SCO shall ensure that Sun has the right to continue to use the technology or replace the technology to make it non-infringing. The provision has not been implicated or applied.

That tells me that Sun is not in any trouble. If anyone is in trouble, should Novell decide to do anything about this, which I doubt, it's SCO. The agreement included the indemnification of Sun, so that if anyone sues Sun, SCO has to step in and take the arrow.

Which is why I doubt Novell would do anything about it, since SCO is currently more or less flat broke, but we'll have to wait and see on that. If someday SCO's prince does come to save her with his wallet, it might change my analysis of what Novell may choose to do. But I can't see any way Sun's Open Solaris is in any hot water under any scenario that I can imagine. Angry as I am at Sun's old management for doing this deal and then keeping mum about it, while the Linux community suffered needlessly, the fact is, as far as I understand Judge Kimball's words, they tell me Sun is indemnified.

And if you want to know why I don't want OpenSolaris to be in hot water, read this article about Microsoft's plan to lock in cloud computing. What I'd like to see to create a FOSS alternative to lock-in cloud computing would be Linux GPL3 + Java GPL3 + Solaris GPL3. More on Midori.