Its an interesting problem: There would have been an infringement from the time that reproduced code is placed in the open source code. IE there was an infringement when UNIX code gets put into Linux.

But because Linux is open source infringing code is re written somewhere down the track.

The Linux code may be an infringment and at the very least may have been derived from infringing code – after all some one had to look at what the infringing code did to create new code to replace it. Whilst that code may not be infringing there has been an infringment but it doesnt exist anymore because it has been covered over, rewritten and replaced.

Therefore the only way to tell whether infringing code was ever in Linux would be to look at the input that programmers have inserted into the code of Linux.

This is exactly what SCO has asked for and what IBM has taken all this trouble to try and stop. But it makes sense that a court should grant anton piller (discovery) orders for those transmissions of new code – if there is sufficient evidence to warrant (IE the linux architecture is sufficiently similar to UNIX).

Unless the Linux code cannot be altered?

I hope my position is a little clearer.

“The reality is that as an open source system all the infringements could have been covered by altered code.“

?!

But many who are watching this spectacle closely are reporting that SCOs claims are extremely weak

The reality is that as an open source system all the infringements could have been covered by altered code. That is probably why SCO is fighting so hard for those original inputs and alterations (which must be well over 3000) by the programmers and IBM is fighting so hard to make use SCO doesnt get them.

I think SCO got about 50.

Anyway, doesnt SCO stilll offer Intel based UNIX, surely that still makes money 😉

“It seems a little confusing to them as well. In either case I am sure that those using Red Hat probably dont get it either.“

I don’t think RMS or others at teh FSF are confused about this at all but yes, many who use variants of the GNU system are not aware that Linux did not originate from the GNU Project. Although it is licensed under the GPL, it is not the FSF/GNU Project developers who would be liable if Linux (or IBMs AIX) contained copyrighted code. Personally, I canot say as I have not looked at the supposed “offending” code myself. But many who are watching this spectacle closely are reporting that SCOs claims are extremely weak – while some are simply claiming that SCO did it to aid Microsoft and bring about an increase in company stock value. As far as I know, when the notion of a lawsuit against IBM began making headlines, SCO stock went up. And why wouldn’t it? Create some FUD and get people excited that this company called “SCO” may cash in big on “IP” rights. Even if the claims are thrown out, in the long run the FUD itself may prove to be a financial plus for SCO executives when all is said and done. Many outsiders who invested in SCO – in anticipation of a nig IP cash-in – may be screwed as the company may end up crashing and burning out of existence. But it could be possible that SCO executives don’t necessarily care if SCO goes down the toilet – as long as they make a few quick dollars off the FUD-factory and then get out before the roof caves in.

Of course, I could be WAY OFF and the SCO executives may actually believe in their heart of hearts that they have been ripped-off Linux developers. Perhaps they really are trying to make the world a better place and all they really want is for justice to be served. Perhaps they will pull the “rabbit out of the hat” and prove that Linux developers ripped large chunks of code from SCOs “System 5”. Perhaps there really are “hundred[s] of thousands” of Lines-Of-Code as McBride reports “copied and pasted” from their “Intellectual Property”. However, if SCO really isn’t out just to make money and is in good faith simply trying to set the record straight – then one wonders why the offending code is still elusive after all this time. After all, Darl McBride made these claims YEARS ago. I mean really – if there is an infringement this obvious (“hundred[s] of thousands” of lines of code), why has the offending code not been clearly pointed out and why have justices basically mocked SCOs arguments? Perhaps this is all a commonist conspiracy…? 🙂

However, if there are any insiders with more information, please pass it on as my words are mere speculation. I’m ultimately not in a position to critique Darl McBride & Co.’s benevolence in this matter.

ACS:

“In any event, GNU of all types may include aspects of the original AT&T code but have probably been covered over by programmers since. Whether they are derivative works is the basis of SCO v IBM.”

If by “types” you mean “Linux variants” then yes. A GNU system running the HURD, for example, would supposedly not include any Unix (or Linux for that matter) kernel code considering the microkernel is a radically different design than the monolithic kernel.