Ex RedHat CEO Bob Young gave an “interview(Lulu : Marketplace for a World of Digital Content)”:http://www.infoworld.com/article/03/12/11/HNredhatfounder_1.html to Robert McMillan this week as a followup to “his response”:http://www.lulu.com/journal/scoletter?fTheme=community to “Darl McBrides”:http://www.sco.com/copyright/ earlier open letter. Of particular interest to me is his detailing of damage mitigation, which he explains far better than I can:

…the way copyright law works is you have to prove damages. And there’s another concept in American law, which says you’re required to mitigate your damages. In other words, just because you know someone did something bad to you, you can’t maximize the impact of that bad thing and then claim a much bigger penalty against the person who did the bad thing to you because you maximized the harm.

Let’s take an example. If someone hits your car, your car is now damaged. But in order to maximize the penalty, you know your car is going to break down if you drive it to New York, but you drive it to New York anyway, because you know you can sue the guy who hit you for wrecking your car on the way to New York. Well a judge would say, ‘No, he should have fixed your car. He hit your car, but the fact that you further damaged your car by driving it to New York is your problem, not his.’ ” That’s the concept of mitigating damages.

But SCO is going out of their way to avoid the mitigation of damages. If SCO actually has a reasonable claim to owning the way that Linux swaps data in and out of data or the way that Linux talks to the video devices, we can fix that. But SCO will not tell us what they are claiming, so we can’t fix it.

So, even if SCO are successful in arguing that SCO-owned code was folded into Linux, and the resulting operating system then caused damage to SCO’s business, they still have to overcome the fact that in the eyes of US law they have done little to mitigate the damage done by Linux. To be honest I’d be amazed if SCO’s FUD campaign gets as far for this to be a major issue (I’ll be mildly suprised if it even gets to court), but you never can tell…