If true, then SCO has more power to do harm, without a doubt. It's a great deal easier to prove copyright infringement. If they want to be mean, and of course we know they'd never do that, they could just allege copyright infringement against every web site offering Linux for download and claim a DMCA violation, and poof. With friends like IBM, who needs enemies?

A Yankee Group analyst who signed the notorious NDA says that SCO's claim appears to be credible, at least from what she saw:

Apparently the most telling evidence is that parts of the SCO code and Linux code include identical annotations made by developers when they wrote the programs, says DiDio, who compares such notes to the signature or fingerprint of a developer's work. "The fact that these appear to be transposed from Unix System V into Linux I find to be very damaging." DiDio says she was shown several instances where the source code and developer's comments in one operating system were the same as in the other operating system.

All rights and ownership of UNIX and UnixWare, including but not limited to all versions of UNIX and UnixWare and all copies of UNIX and UnixWare (including revisions and updates in process), and all technical, design development, installation, operation and maintenance information concerning UNIX and UnixWare, including source code, source documentation, source listings and annotations, appropriate engineering notebooks, test data and test results, as well as all reference manuals and support materials normally distributed by Seller to end-users and potential end-users in connection with the distribution of UNIX and UnixWare...

Intellectual property:

A. All copyrights and trademarks, except for the trademarks UNIX and UnixWare.
B. All Patents

Nuff said. So, it appears to be contractual violations or nothing, though the argument may be a long one as to who has enforcement rights.

You can learn from history. I found an old Caldera Statement of Facts in its lawsuit against MS. Yes, this is the same unfair competition case, settled in January of 2000, where the documents are now being turned into toilet paper by Caldera/SCO. It's no wonder MS would want *that* to happen.

If you were wondering why the SCO story keeps going on and on, with no real substance being put out for all to see but apparently a life of its own, consider what happened behind the scenes in the world of PR, otherwise known by some as FUD, in the Caldera/MS battle.

According to the Statement, and the many exhibits, MS used FUD to deliberately cause the public to think that DR DOS, Caldera's competing product to MS DOS, had "compatibility problems" running on Windows when it really didn't and in fact was a superior product. The FUD worked -- DR DOS failed as a product, hence the lawsuit. The entire Statement is here and more here. Perhaps Caldera learned from history too?

Meanwhile, it turns out that their attorney David Boies has a contingency arrangement with them, so he collects depending on what he wins for them. To say I am amazed is putting it mildly. He must really believe in what he is doing. Forbes interviewed him and he says he is committed to diversity in the software market and that this lawsuit is in pursuit of that noble goal:

"You don't want proprietary software to kill Linux or vice versa. I want to make sure the playing field doesn't get tipped."

In response, SCO put out this statement:

SCO owns the contract rights to the UNIX® operating system. SCO has the contractual right to prevent improper donations of UNIX code, methods or concepts into Linux by any UNIX vendor.

Copyrights and patents are protection against strangers. Contracts are what you use against parties you have relationships with. From a legal standpoint, contracts end up being far stronger than anything you could do with copyrights.

SCO's lawsuit against IBM does not involve patents or copyrights. SCO's complaint specifically alleges breach of contract, and SCO intends to protect and enforce all of the contracts that the company has with more than 6,000 licensees.

We formed SCOsource in January 2003 to enforce our UNIX rights and we intend to aggressively continue in this successful path of operation.

Novell's letter to SCO is here and here is one pertinent snip:

SCO claims it has specific evidence supporting its allegation against the Linux community. It is time to substantiate that claim, or recant the sweeping and unsupported allegation made in your letter. Absent such action, it will be apparent to all that SCO's true intent is to sow fear, uncertainty, and doubt about Linux in order to extort payments from Linux distributors and users.

SCO continues to say that it owns the UNIX System V patents, yet it must know that it does not. A simple review of U.S. Patent Office records reveals that Novell owns those patents.

Importantly, and contrary to SCO's assertions, SCO is not the owner of the UNIX copyrights. Not only would a quick check of U.S. Copyright Office records reveal this fact, but a review of the asset transfer agreement between Novell and SCO confirms it. To Novell's knowledge, the 1995 agreement governing SCO's purchase of UNIX from Novell does not convey to SCO the associated copyrights. We believe it unlikely that SCO can demonstrate that it has any ownership interest whatsoever in those copyrights. Apparently, you share this view, since over the last few months you have repeatedly asked Novell to transfer the copyrights to SCO, requests that Novell has rejected. Finally, we find it telling that SCO failed to assert a claim for copyright or patent infringement against IBM.

I've been trying to figure out why SCO won't show the allegedly infringing code publicly. I think I've got it.

Reading this explanation of how copyright infringement is determined and what the penalties can be, it came to me: if they plan on using copyright infringement now that the case is in federal court, could their ultimate dream be that IBM will be found to have infringed (and if you can prove access, the bar for proving substantial similarity is lower, and IBM programmers likely started with prior access to code, or they hope they did, although IBM erected barriers once they committed to Linux work) and then for a penalty, they ask the court to impound and order destroyed all copies of the infringing materials, meaning that everybody using Linux in business or otherwise would have to remove the software and turn in any disks and destroy RPMs and wait for the community to write around the infringing code, which could take weeks or months, depending on the extent of it, and then install the new?

How much will a business want to use Linux after that experience? Only the most committed will do it, and onlookers thinking of switching won't.

By not showing the code now, they make it harder to be ready for such a scenario. Here is how the article describes the penalties:

Finally, a plaintiff in an infringement action may, in addition to obtaining monetary damages for an infringement, obtain temporary and final injunctive relief to prevent or restrain infringement of a copyright. Additionally, at any time during an infringement action the plaintiff may seek to have the court order the impounding of all infringing articles claimed to have been made or used in violation of the owners exclusive rights. Included in the articles affected are all copies, or all other articles which can reproduce the copies. As part of the final judgement the court may order the infringing articles destroyed or otherwise disposed of.