This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. In Harper & Row, for example, we explained that President Ford could not prevent others from copying bare historical facts from his autobiography,but that he could prevent others from copying his "subjective descriptions and portraits of public figures." Where the compilation author adds no written expression but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection. No matter how original the format, however, the facts themselves do not become original through association.
On its face, this passage severely undermines SCO's position as a matter of law. The only "copyrightable" elements are the original "selection and arrangement," not the underlying facts themselves. However, that only gets us to another question: Is a functional "selection and arrangement" of computer code copyrightable as a matter of law (leaving aside the "useful article" issue for the moment)? Or, instead, do we have a different issue?
[An alphabetized listing] may, technically speaking, owe its origin to Rural; no one disputes that Rural undertook the task of alphabetizing the names itself. But there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. It is not only unoriginal, it is practically inevitable. This time-honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution.
Id., 499 U.S. at 363 (citations omitted). So, then, if the general organization of an operating system is "firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course," which is almost certainly the case, that organizational scheme is not copyrightableand with that disappearance, so go SCO's copyright claims.
Whether SCO might have a claim against IBM on a contract theory is another issue entirely; but, as bona fide purchasers for value of Linuxthe value being, at minimum, the time expended on obtaining the installed copy (remember, in the modern conception "adequacy of consideration" is essentially assumed)Linux users have no liability for anything that IBM may have done wrong. If, in fact, it did; and that seems highly improbable.