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By Ina Fried, 15 July 2005 09:24

NEWS A 2002 email suggests that an investigation commissioned by The SCO Group failed to produce any evidence that Linux contained copyrighted Unix code.

The email, which was sent to SCO Group CEO Darl McBride by a senior vice president at the company, forwards on an email from a SCO engineer. In the email, dated 13 August, 2002, engineer Michael Davidson said: "At the end, we had found absolutely nothing ie [sic] no evidence of any copyright infringement whatsoever."

The email was posted on Thursday to internet law site Groklaw.

SCO sued IBM in 2003 for more than $1bn, alleging that IBM had misappropriated Unix technology to which SCO claimed intellectual property rights.

A SCO representative told CNET News.com the email was authentic but noted that it doesn't say when the SCO investigation took place or what tools were used.

A SCO spokesman said: "That email probably creates a lot more questions than it answers. We'll be fully prepared to address that but we will be doing that in a court setting if it is necessary."

An IBM representative declined to comment.

In the email, Davidson shares his findings with senior vice president Reg Broughton, who then forwards that note to McBride.

Davidson's email said: "The project was a result of SCO's executive management refusing to believe that it was possible for Linux and much of the GNU software to have come into existence without someone somewhere having copied pieces of proprietary Unix source code. The hope was that we would find a 'smoking gun' somwhere [sic] in code that was being used by Red Hat and/or the other Linux companies that would give us some leverage."

Although the details of the investigation are not spelled out in the email, Davidson does note that it was carried out by Bob Swartz, a consultant hired by SCO.

"An outside consultant was brought in because I had already voiced the opinion (based on very detailed knowledge of our own source code and reasonably broad exposure to Linux and other open source projects) that it was a waste of time and we were not going to find anything."

Davidson goes on to note that Swartz spent four to six months looking at the Linux kernel as well as a large number of libraries and utilities, comparing them to several different versions of AT&T's Unix source code.

Late on Thursday, SCO released an email from Swartz that it points out shows the analysis dates back to 1999 and that SCO says shows Swartz did find possible issues with Linux.

In this email, dated 4 October, 1999, Swartz said there was some code that was line-for-line identical to Unix and other code that appeared to have been rewritten, perhaps to disguise that it was copied. However, Swartz also noted that it was not entire programs but rather "fragments of code".

Swartz wrote in his email: "The fact however that there are pieces of code which are identical to those in the Unix source and others which appear to be simply a rewriting of Unix code is clearly disturbing."

SCO said in a statement late on Thursday that this memo "shows that there are problems with Linux".

The SCO spokesman added that IBM has brought up the email in court and noted that a judge has refused to dismiss SCO's suit. Although IBM had presented Davidson's email in court filings, it was part of a filing that had been sealed and was only recently made public.

In February, US District Judge Dale Kimball denied a partial summary judgment request filed by IBM. However, in his ruling he severely criticised SCO for producing almost no evidence to date to support its claims.

"Despite the vast disparity between SCO's public accusations and its actual evidence - or complete lack thereof - and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment," Kimball wrote.

The case is scheduled to go to trial in early 2007.

CNET News.com's Michael Kanellos contributed to this report

Ina Fried writes for CNET News.com