February 9, 2005 9:35 PM PST

Judge slams SCO's lack of evidence against IBM

The federal judge overseeing the SCO Group's suit against IBM regarding Unix and Linux has thwarted an IBM attempt to defang SCO's claims, but he also voiced loud skepticism about SCO's case.

IBM in 2004 sought a declaration that its Linux activities hadn't violated SCO's purported Unix copyrights, as SCO had claimed publicly and in its lawsuit. Although U.S. District Judge Dale Kimball didn't grant that declaration--called a partial summary judgment--he sharply criticized SCO for not producing evidence for its case.

"Despite the vast disparity between SCO's public accusations and its actual evidence--or complete lack thereof--and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment," Kimball wrote Wednesday. "Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities."

The opinion bodes poorly for SCO, intellectual property attorneys agreed.

"Based on the scathing language of the ruling, it appears that SCO just barely dodged a possible knockout punch in this round," said Carr & Ferrell attorney John Ferrell. "There's very little that can be more disastrous to your case than an angry federal judge."

Allonn Levy of law firm Hopkins and Carley voiced a similar view.

"Even though you have to say IBM did not hit the home run, if you read that order, you have no choice but to see this as another setback for SCO," Levy said. "This judge is painting an ominous picture for SCO."

The copyright issue is central to SCO's position in the $5 billion case, which sent shock waves through the computing industry when SCO began it in 2003. SCO asserts IBM violated its contract with the company by moving proprietary Unix technology to open-source Linux.

Had IBM won its partial summary judgment motion, it would have been devastating for SCO's case. "If you win on that point, what's left? It seems your claim of breach of contract...falls apart," Ferrell said.

Judge: arguments "puzzling"
Kimball also took issue with SCO's varying position on exactly how it believes IBM violated SCO's copyrights. Initially, the company said it would argue that IBM infringed SCO copyrights by moving Unix code to Linux. But when SCO filed its main claim, it argued merely that IBM infringed only by continuing to ship a version of Unix, called AIX, after SCO said it had revoked IBM's license to do so.

However, Kimball pointed out several occasions in which SCO continued to make the earlier, broader argument. In addition to several references in the IBM case, SCO also put the claim at the center of its lawsuit against Linux user and former SCO customer AutoZone.

Kimball called it "puzzling" that SCO denies it's making this broader copyright infringement claim.

The case also has entangled Unix licensee DaimlerChrysler and Linux sellers Red Hat and Novell. However, customers seem undaunted. Linux server sales continue to boom despite SCO's demands that customers pay Unix license fees or face legal action.

IBM had argued that it didn't need to release any source code because SCO already had all the evidence it needed to make its case: the original Unix source code and the publicly available Linux source code. But Kimball agreed with SCO's position that the release of more source code could be necessary.

Kimball's opinion in the matter dovetails with that of Magistrate Judge Brooke Wells, who in January ordered IBM to share the source code underlying IBM's AIX and Dynix versions of Unix, as well as programmers' comments.

SCO, a former Linux seller that now focuses just on its Unix products, has been struggling for years. Its legal case has been expensive, though in 2004 it capped its expenses with law firm Boies, Schiller & Flexner.

The door for partial summary judgment hasn't closed all the way for IBM. Big Blue is free to renew or refile the motion after the completion of the discovery process, in which the litigants examine each other's information.

SCO might uncover more information, but Levy has a hard time understanding why SCO would have withheld evidence at this stage.

"Especially when you're talking about the danger of having summary judgment or even partial summary judgment granted against you, it's pretty difficult to think of a reason you would withhold all of your evidence," Levy said.


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What happened to their claim of millions of lines of code that infringed?
When this mess started they claimed they had tons of evidence, yet they still have not showed any. Why the judge is allowing this farce to continue is beyond me. He should do the industry a favor and flush SCO into the chapter 11 toilet. This litigation is their last gasp, and in ~2 years they have shown no proof.
Posted by Bill Dautrive (1179 comments )
Reply Link Flag
Bad news for the media too.
The media, including News.Com reported everything SCO said as if it were fact. They got quotes from "analysts" like Laura Didio and Rob Enderle who EXPLICITLY stated that SCO's case was a slam dunk. Enderle even went as far as calling the Linux community terrorists. And yet these discredited people are still actively employed in the industry giving their worthless opinions on other important subjects. The computer industry media has a lot to answer for today, but I am not going to hold my breath, I just hope IBM subpeonas CNet, Ziff, CRN and the whole lot to give testimony about the evidence their "analysts" and other reporters claimed to have seen that "proved" SCO's case.
Posted by aabcdefghij987654321 (1721 comments )
Link Flag
SCO is pure BS
There never was a case, only a dream, funded in part by MS, to
somehow keep SCO from total financial collapse. The approach
to screw up Linux was just a way to avoid that collapse. It was a
bogus dream in the beginning, and it's just as bogus now, as the
judge basically pointed out.

I can't really believe that a legitimate law firm is handling SCO's
case unless most of the legal fees have been paid up front.
Doing this one on a contingency basis would make the law firm
as stupid as SCO management,
Posted by Earl Benser (4310 comments )
Reply Link Flag
End of this FiaSCO is in sight
SCO is not likely to survive as a company if this case falls apart. I can't see how they thought threatening every large company in the tech sector would actually improve their bottom line. But many of us will have a smile on our faces in the end when the Federal judge dismisses the case against IBM and SCO is forced into bankruptcy by the counter-suit that is sure to be filed.
Posted by bweir13 (20 comments )
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Though I'm not a Linux user, my Mac uses Unix (or a version of it), I can't believe someone is trying to pull what SCO is. SCO's claims are purely false. Everyone can see it. They probably thought IBM would pay millions not to get involved in anything that would potentially tarnish their name. Guess they were wrong, eh?
Posted by (461 comments )
Link Flag
I would love to see the end of this, and have SCO handed their head. I fear, however, that there is still money to be made by the lawyers, and hence this will drag on and on, into the foreseeable future. Remember, the end of this case might just be the start of the next appeal...
Posted by catchall (245 comments )
Link Flag
Are we seeing a baby Enron?
Shouldnt the SEC be looking into this? It would appear to me if a judge has a hard time believing that this is more than scheme to inflate SCO stock by making public statements that are miss leading. If this is the case SCOs worries should be focused on a different legal front via the Enron/MCI examples. By misrepresenting their intellectual capital arent they are giving a false report of corporate value.
Posted by (3 comments )
Reply Link Flag
Why would they withhold evidence?
Because they DONT HAVE ANY, as the Linux community has been saying for almost TWO YEARS NOW. And isn't it convenient that SCO funded this lawsuit almost exclusively with Sun and Microsoft money? Oh and look, Microsoft just released a study claiming that their legal protection is better than the Linux community's. Hmm, I guess that is just a co-incidence, eh Judge Kimball?
Posted by aabcdefghij987654321 (1721 comments )
Reply Link Flag
"millions of lines of code..."
Remember a couple of years ago, Darl? Uh, could you please produce just one page (about 60 lines)?
Posted by ray08 (64 comments )
Reply Link Flag
Oh, I forgot!
SCO later changed the claim of millions of lines of code to "non-literal copying"! Hint: Darl, you don't have a patent on Unix! For simple people like you, Darl, that just means THERE IS NO SUCH THING AS NON-LITERAL COPYING!
Posted by ray08 (64 comments )
Link Flag
SCO has done some good.
Ever sence SCO brought these charges the Linux community has started working harder on tracking thier code.

And when SCO goes belly up, hopefully one of the big linux supporters will buy up Unix and open source it.
Posted by System Tyrant (1453 comments )
Reply Link Flag

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