Summary and Conclusions

It certainly looks as though SCO, through its spokesperson Chris Sontag, is clearing the Linux kernel, at least as supplied by kernel.org, of containing any tainted/SCO-owned Unix code. This is tremendously important.

Since SCO filed its Caldera v IBM lawsuit, there has been a very disruptive cloud over the Linux kernel. Chris Sontag's statement here, We're not talking about the Linux kernel that Linus and others have helped develop. We're talking about what's on the periphery of the Linux kernel removes that cloud from the kernel.org Linux kernel.

Are Red Hat, SuSE, or Others Guilty of Misdeeds?

However, Chris Sontag would not go so far as to clear the GNU/Linux operating system of SCO-owned code contamination. Nor does he directly accuse the GNU/Linux OS of containing SCO-owned code.

On the other hand, Chris Sontag's statements here clearly allege that Red Hat and SuSE are using proprietary SCO-owned code in their Linux products. For example: We are coming across many instances where our proprietary software has simply been copied and pasted or changed in order to hide the origin of our System V code in Red Hat.

Don't be surprised to see Red Hat and SuSE get drawn into this fracas. Chris Sontag's statements appear to be that SCO-Caldera is laying the groundwork for copyright infringement claims against Red Hat and SuSE.

Mechanisms of Tainting Linux Distribution Code

One reason there might be proprietary SCO-owned code in a particular Linux distribution, such as SuSE or Red Hat as Chris Sontag alleges, is that the Linux kernel and the GNU/Linux operating system are open source and under public license.

That means in part that anyone, including a commercial Linux distribution provider such as Red Hat or SuSE, can and may modify, alter, and/or add to the underlying Linux kernel and/or GNU/Linux operating-system code-base when putting together a Linux distribution or product.

Moreover, Linux distribution providers, particularly commercial Linux distribution providers, do exactly that. That's because they want their customers to have a very smoothly running Linux-based system. So they likely tweak the Linux Kernel and the GNU/Linux OS for the type of Linux distribution they are packaging such as a Linux desktop, Linux workstation, Linux server, enterprise Linux, and so forth package. They also might do some tweaking to optimize a distribution package for 32-bit, 64-bit, AMD, or Intel CPU.

Then the Linux distribution providers often develop their own installation tools, configuration tools, and so forth as part of their Linux distribution development. The point here is that there is plenty of opportunity for a Linux distribution provider to add code in its Linux distribution that was not in the original code-base that came from either the kernel.org Linux kernel and/or the GNU/Linux operating system.

SCO's Caldera v IBM Complaint seems to be most concerned with server/enterprise grade Linux distributions. Both Red Hat and SuSE produce and market server/enterprise grade Linux distributions.

One thing that differentiates these server/enterprise grade Linux distributions from regular Linux distributions is the set of installation and configuration tools included. To the extent there might be SCO-owned Unix code and/or trade secrets contained in Red Hat or SuSE products, it might quite likely be related to the more high-powered installation and configuration tools included in Red Hat and SuSE server/enterprise grade products.

Anatomy of a Linux Distribution

To better understand this, please take a look at Figure 1. It is a somewhat simplified, logical cross-section of a Linux-based computer system.

Figure 1 shows how a GNU/Linux-based distribution is put together logically, and how the parts relate to each other. This is a very simple diagram. It was made just to give those of you who are not up on the more technical details a picture of how these different layers of a Linux distribution relate to each other and to the distribution.

We have left some of the more technical stuff, such as the system C library, out of this diagram in order to keep things simple. If you would like more information on Linux and Unix anatomy and architecture, there are some links about that in the Resources section at the end of this article.

The different parts of what eventually becomes a Linux distribution are developed and produced by different individuals, groups, and organizations. For example, the Linux kernel maintainers, Alan Cox, Marcelo Tosatti, Linus Torvalds, David Weinehall, and so forth are part of kernel.org. All those many people that contribute kernel code, help with kernel testing and quality assurance, do the kernel documentation, and so forth loosely are more or less part of kernel.org too. They, along with the kernel maintainers, produce the official Linux kernel.

Then the gnu.org people, that's Richard M. Stallman (rms) and company, contribute lots of code that helps to build the GNU/Linux operating system around the Linux kernel. Many other groups, organizations, and individuals also contribute code that helps to build the Linux operating system too.

After that, countless commercial, paid, independent, and/or volunteer developers, coders, documenters, testers, and so forth build applications and utilities for the GNU/Linux operating system. Some of these products are open source, some are not. Some are free and some are commercial.

Next a GNU/Linux distribution provider collects a Linux kernel, the GNU/Linux operating system parts, applications, utilities, and so forth and then packages them into a complete Linux distribution -- such as SuSE Linux or Red Hat Linux.

The Innocent and the Allegedly Guilty

In today's discussions, Chris Sontag has cleared one end of the Linux Distribution chain, the Linux kernel supplied by the kernel.org people, of containing tainted or proprietary SCO-owned Unix code. And at the other end, he has alleged that the Red Hat and SuSE Linux products do contain tainted or proprietary SCO-owned Unix code.

However, Chris Sontag's statements leave all the stuff in the middle between the Linux kernel and the SuSE and Red Hat Linux distributions under the disruptive cloud caused by SCO's Caldera v IBM lawsuit.

IBM's Options and SCO's Fishing Expedition

SCO's Caldera v IBM Complaint is very vague and indefinite about in which layers (or rings) of what it loosely calls Linux the allegedly tainted code and allegedly misappropriated secrets, methodologies, and know-how have been deployed. One of the options that IBM has when it responds to SCO's Caldera v IBM Complaint is to ask for a more specific Complaint -- one that distinguishes between the Linux kernel, the GNU/Linux operating system, Linux distributions, Linux applications, and so forth. Another option would be for IBM to file a motion to dismiss the Complaint -- in part because as so loosely pled, the Complaint fails to state a cause of action (claim) for which the Court can award damages.

It's hard to not notice SCO's vagueness in its Caldera v IBM Complaint and its public statements about it. Covering the SCO IP and Caldera v IBM lawsuit involves lots of legwork. One thing that we have noticed in doing all the legwork is that some of SCO's vagueness in its Caldera v IBM Complaint and its public statements about the Complaint is because the SCO people just do not seem to know.

It could be that the Caldera v IBM lawsuit is as much a fishing expedition as it is a serious claim for damages from IBM. Consider for example:

MozillaQuest Magazine: Have they [Red Hat and SuSE] violated any SCO-Caldera copyrights, patents, and/or trademarks?

Chris Sontag: That will be determined as SCO's case proceeds.

and

MozillaQuest Magazine: Also, to the extent that this is SCO-owned code, is this stuff that IBM gave to Red Hat or did Red Hat somehow grab it from some other source(s)?

Chris Sontag: That is a good question that we would need to ask the Linux vendors when the time is right.

Prior to trial of a civil lawsuit such as this there is a discovery process. The discovery process includes such things as forcing a lawsuit opponent to answer questions and produce documents that might lead to discovery of facts and evidence against the opponent. Simply put, civil-litigation pre-trial discovery is a legally authorized and legally enforceable fishing expedition

One cannot be forced to incriminate himself or herself in a criminal proceeding. Civil proceedings are conducted in a different arena. Forcing a defendant to indulge in self-incrimination is allowed and pretty much standard procedure in civil litigation.

A reason that SCO-Caldera so far has failed and has refused to publicly disclose what proof it has to support its Caldera v IBM claims could be that it does not (yet) have that proof. It could be that SCO-Caldera is hoping that the opportunity for a pre-trial fishing expedition will provide some nice, big-blue fish to fry. Moreover, SCO-Caldera might also hope to catch a few green (SuSE) and red (Red Hat) fish too during its pre-trial fishing expeditions.

Additionally, during trial if it comes to that, SCO-Caldera can subpoena Red Hat and SuSE people and records for even more fishing.

Filing a lawsuit before one has all the proof and evidence in hand might sound improper to some. However, it is a common practice in civil litigation to do that. In part that is just the reason there is such a broadly-scoped discovery process available to civil litigants. That allows one who feels he or she has been civilly wronged to file a lawsuit and then force the defendant to provide the evidence the plaintiff needs to win the lawsuit.

No use to get upset about that just for the Caldera v IBM lawsuit. That's the way the court rules are carved now -- like it or not.

Is It a Wrap?

The good news for the Linux community is that SCO, through its spokesperson Chris Sontag, has cleared the Linux kernel, at least as supplied by kernel.org, of containing any tainted/SCO-owned Unix code. That removes the very disruptive cloud over the Linux kernel that SCO's Caldera v IBM lawsuit put there nearly two months ago.

This is far from a finished story. There is lots more to come.

So, stay tuned.

Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip