That's the key question in the imbroglio over SCO's claims that IBM, among others, improperly used Unix code in developing Linux. To be honest, it's also the one question that the open-source community--or at least a fairly vocal subset of it--largely refuses to address.
For all the pleadings and letters that will emerge from this maelstrom, SCO's claims are fairly simple: It owns the bulk of the intellectual property underlying Unix, and recently, some of its code has been spied in Linux. Actually, make that quite a bit of it, says SCO.
"I can see getting three, four, five, lines of code identical," said Chris Sontag, senior vice president of the Lindon, Utah-based company, pointing to a nearly full page of allegedly copied code. "If it was a few lines, I'd give it to you."
And it's not just the code. Programmer comments embedded in Linux--quick, English-language descriptions that aren't subject to mathematical or programming rules--are identical to those found in SCO's Unix code, according to SCO. There's even a typo in one of the commentaries in Unix System V that also appears in a Linux commentary, Sontag said.
Extracting the controversial code is not really a feasible solution. Because of the way intellectual property (IP) laws work, derivative products that use the allegedly pilfered code are also subject to liability. Anyone who bundles suspect products, or uses them, is also conceivably on the hook.
The billions of dollars in royalties claims from this could generate could even allow SCO CEO Darl McBride to buy a "y."
Most companies now facing this legal liability aren't deliberately--or even negligently--appropriating code, but that's the way the IP ball bounces.
The reaction of the Linux community to this has often been all spit and nails.
"He (McBride) is a traitor. Surely he wants to be involved in Linux, because his SCO Open Unix crud cannot compete," a reader wrote in an e-mail to CNET News.com recently. "I have more self-respect than to give them any chance to speak after what they have done. SCO--'simply criminal organization.'"
The comment is par for the course. Most detractors reckon that SCO is only filing the lawsuits out of desperation for financial gain or is playing into the hands of Microsoft.
Some contend that IBM, which wields the largest patent portfolio in the world, wouldn't steal intellectual property--a position Sontag himself held initially, he said. Still others have defended the integrity of open-source developers.
"The open-source community has been careful to create its own code rather than copy others," wrote open-source guru Bruce Perens in a recent article. "Our developers are smart enough to understand the consequences of plagiarism."
But when you boil these arguments down, they all say the same thing: SCO is bad, and we are good. The attitude reflects what I like to call the Engineer's Fatal Flaw: the belief that you passed physics, so you think you know everything.
Don't get me wrong. I stand in awe of people who can design transistors or even who can put up drywall. But there is arrogance inside the scientific mind, and it rarely knows when to stop. It's no coincidence that Herbert Hoover and Jimmy Carter are the only engineers to ever sit in the White House.
Put the SCO argument another way: What if you found out something you had a hand in was now the basis of a multibillion-dollar empire? Would you want a slice, or denounce yourself as a fraud?
In the end, I think there is going to be a simple explanation for all of this. People working on open-source projects, I believe, simply forgot. Many companies--Hewlett-Packard, IBM, SGI--have been selling versions of Unix for years. So why can't they just reuse their own products?
They can't, because SCO controls the rights over further licensing of derivative products. (Only Sun Microsystems, which has paid around $100 million to the various Unix stewards over the past decade for derivative rights, fully controls the legal destiny of its products.) It's an inconvenient legalism--and one not always discussed in the lab--but it exists.
SCO could also be really overplaying some minor copying. But we won't know until the evidence is in.
Michael Kanellos is editor at large at CNET News.com, where he covers hardware, research and development, start-ups and the tech industry overseas. He has worked as an attorney, travel writer and sidewalk hawker for a time share resort, among other occupations.