August 16, 2004 2:49 PM PDT

IBM strikes at SCO claims

IBM has taken another swing at the SCO Group's faltering attack on Linux, filing a motion seeking dismissal of SCO's contract claims.

The motion for partial summary judgment, filed Friday in U.S. District Court in Salt Lake City, centers on SCO's claims that IBM violated a contract that permitted Big Blue to use Unix operating system code controlled by SCO. SCO contends that IBM overstepped its bounds by freely distributing Linux software that reuses parts of the Unix code.

An IBM representative declined to comment.

SCO disputed IBM's arguments. "SCO disagrees with IBM's interpretation of their contractual obligations regarding derivative works," the company said in a statement. "According to IBM's interpretation from their most recent filing, the 1985 Unix software agreement would provide less intellectual-property protection than if no contract had been written at all. We look forward to proving our case in a court of law in the near future."

The motion focuses specifically on SCO claims over "derivative works," by which it claims to have control over any subsequent software that utilizes parts of Unix code.

IBM's motion states those claims contradict the language of Big Blue's Unix contract with AT&T--the original owner of Unix--and the understanding of the parties involved in drafting it.

"The individuals who executed the licenses and were involved in their negotiation, on behalf of both AT&T and IBM, have offered unequivocal testimony that the agreements were not intended and should not be understood to preclude IBM's use and disclosure of homegrown code, and contemporaneous documents reflect this interpretation of the licenses," according to the motion.

The motion further claims that any interpretation that would grant SCO derivative rights is negated by recent actions by Novell--which bought Unix from AT&T and later sold the rights to a precursor of SCO--absolving such claims.

"Novell, which at one time owned all rights in the AT&T agreements at issue, retains the right to waive alleged breaches of the agreements, and Novell has exercised that right to effect a waiver of the alleged breaches in this case," according to the motion.

The motion cites declarations from many of the parties involved in AT&T's original licensing negotiations regarding Unix, all of whom reject the derivative works interpretation. David Rogers, former vice president of Sequent, the server maker IBM later acquired and subject of several of SCO's claims, says such an interpretation contradicts common sense and would have been ruinous for Sequent. "It would have been foolish of me, as an officer of a venture financed start-up company, to give away the rights to the company's core products in perpetuity," the motion quotes him as saying.

The motion also cites analysis performed by computer scientist Randall Davis of the Massachusetts Institute of Technology, who analyzed lines of Linux code SCO has identified as infringing its Unix rights. Davis "concluded that such code does not contain any portion of source code from Unix System V and is not substantially similar to any source code in Unix System V," according to the motion.

The motion further charges that SCO has undermined its own claims by continuing to distribute Linux software, including products that contain allegedly infringing code, as recently as two weeks ago. "Given SCO's extensive promotion and sale of Linux, and of the specific code contributed by IBM therein, for years prior to commencing this suit against IBM, SCO has waived any right to claims that IBM breached its contracts by disclosing such code," the motion says.

SCO rattled the technology world last year when it sued IBM, claiming the computing giant illegally incorporated into its Linux software some source code from the Unix operating system, which SCO claims to control. The case has since ballooned into a far-ranging attack on Linux, attracting legal attention from Linux companies Novell and Red Hat and the ire of Linux supporters worldwide.

SCO has since expanded the case to include several prominent corporate Linux users, including automaker DaimlerChrysler and retailer Auto Zone.

SCO has suffered several setbacks lately in its multipronged legal attacks, with a judge discarding most of the DaimlerChrysler case and legal expenses cutting into the company's profits.

 

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