The Mount Everest of evidence proving IBM's Linux contributions infringed SCO's intellectual-property rights amount to little more than a mole hill, according to a lawyer for Big Blue, who recently told a federal judge SCO has identified only 326 lines of offending code, compared with more than 700,000 lines of IBM's GPL'd code in the Linux kernel. (Note: an earlier version incorrectly said out of a base of 700,000 lines.)

Of the 326 lines, most are comments, header files and other statements that aren't eligible for copyright protection, the IBM attorney, David Marriott, argued. To be copyrightable, a work must be the result of originality and creativity, not a mindless variation of something already out there.

In 2003, SCO CEO Darl McBride publicly declared SCO had a "mountain of evidence" that would prove that Linux was a direct descendant of Unix. Marriott pounced on that assertion at the March 7 hearing.

"They claimed rights to more than a million lines of code in Linux," he said at a hearing last week. "At the end of the day, there's 326 lines of code in which they have rights, and they have sought to exert the supposed monopoly they have and copyrights they claim to have over technology plainly owned by others." The transcript, along with plenty of commentary ridiculing SCO's every argument in microscopic detail, were provided by Groklaw.

According to the Groklaw screed, 121 of the 326 lines at issue are #define statements that specify abbreviations. That's tantamount to trying to copyright the abbreviation 10 Cir. when referring to the 10th Circuit Court of Appeals, which is where this case will likely land (assuming SCO doesn't go bankrupt first). Be that as it may, such shorthand isn't eligible for copyright protection, even if IBM did lift them from SCO, and Groklaw is confident IBM did not.

Also among the contested lines are what are known as structure declarations, which identify things, such as the type of OS a computer is using. A third class of header files being fought over are function prototypes, which specify which operations can be carried out and how.

According to Groklaw, an expert hired by SCO has argued that even the choice of list names put in alphabetical order and the assignment of sequential numbers requires a level of creativity sufficient to qualify for copyright protection. Marriott took aim at that claim, saying a US Supreme Court decision shows such code lacks the required originality to be protected. ®