SCO Still Providing Linux Source Under GPL

SCO has actually claimed that the the linux kernel as they distributed it is NOT properly licenced under the GPL.

They claim that IBM had no authority to mix their Unix code with the linux kernel and therefore that the resulting work is not actually GPL'd. See here for details of this claim. They are actually correct as regards IBM's original creation of this mix, assuming (big assumption) that their claim is actually true.

The problem of this is that the GPL requires SCO, when they distribute either modified sources (GPL 2b) or object code (GPL 3), to place the work "as a whole" under the GPL, regardless of any licencing issues prior. Thus it is no defense, as they imply per the above link, to claim to have received an improperly licenced work. Just as they claim the creation and distribution of a mix of linux and SCO-owned unix violates their copyrights as the owner of the unix portions, so to does THEIR distribution of the same code constitute copyright infringement of the GPL'd portions of the kernel.

In order to win their lawsuit against IBM for creating the linux/unix mix, they have to prove their own infringement by distributing the same without licence. It really doesn't matter whether this infringement was "knowing". Moreover, since they continue to distribute this allegedly improperly licenced linux/unix mix, one can only conclude that they are now doing so knowingly and wilfully, which differentiates them from everybody else who doesn't believe their claims and can't even evaluate their claims because SCO refuses to make public the evidence.

The other possiblitly is that because the GPL says that the act of distribution constitutes agreement, this will be enforced and IBM will have the affirmative defense of explicit authorization after the fact. This would prove that the GPL is "viral" at least for organizations that ship GPL code without knowing what is in it. Then again, selling code without inspecting it carefully under terms written by somebody else that surrender certain IP rights is probably not something that you should ever do if you don't want to give up your IP rights.

I also presume since the original terms of sale were unchanged, each and every SCO customer has a valid GPL licensed distribution that allows them to further redistribute! I suppose the worst case scenareo is one where every Linux distributor and user would then have to have a derived GNU/Linux system they could trace back to an original SCO customer?!