Well, it depends if the CDDL has been stripped off the files or not. If the CDDL has been stripped off and replaced with anything that denotes that the source is now a trade secret, then yes -- it's stolen IP. But if the CDDL is still there, the situation will be murky, and I would hope that Oracle would clarify it one way or the other. Remember, this is not simply a proprietary system, it's a system (1) that was open source not very long ago (2) that was closed without a public announcement of any kind and (3) for which an internal commitment was made to make the source code available after Solaris 11 shipped. [1] Point is: this isn't SCO by a long shot.

[1] http://smartos.org/2011/12/15/fork-yeah-the-rise-and-develop...