September 13, 2004 12:47 PM PDT

SCO challenges IBM witnesses

Linux adversary The SCO Group has repeated its demands for IBM to show it software code and other potential evidence, and has attacked the credibility of key IBM witnesses.

In a motion filed Monday with U.S. District Court in Salt Lake City, SCO asked the court to delay any ruling on IBM's request for summary judgment until Big Blue fully complies with all requests for "discovery," the process by which litigating parties turn over potential evidence. The court is scheduled to hear one of IBM's claims for partial summary judgment on Wednesday.


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The motion also challenged key IBM witnesses, saying their testimony contradicts claims made under oath in a previous case.

An IBM representative did not immediately respond to a request for comment. A SCO representative declined to comment beyond the text of the motion.

SCO rattled the technology world last year, when it sued IBM, claiming that 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 drawing the ire of Linux supporters worldwide.

SCO has since expanded its legal campaign to include several prominent corporate Linux users, including automaker DaimlerChrysler and retailer AutoZone.

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.

As part of the case against IBM, SCO has requested reams of memos

"IBM has precluded SCO from obtaining discovery on numerous issues, including those bearing directly on IBM's dispositive motions," according to the motion. "The longer IBM holds back the foregoing rudimentary, predicate information, the greater IBM will compromise SCO's ability to use it effectively as a basis for further discovery and the development of its case."

The motion goes on to attack the testimony of two former AT&T employees cited by IBM to buttress its copyright claims, saying their testimony regarding AT&T's intentions when it sold its rights to Unix directly contradict their testimony in an earlier case involving AT&T and Berkeley Software Design (BSD). In that case, the AT&T people claimed that company's rights extended to "derivative works," similar to claims SCO has made regarding its Unix rights.

"At an absolute minimum, the prior testimony...not only contradicts IBM's position that AT&T did not protect, and was not interested in protecting, anything other than literal Unix source code," according to the motion, "but also demonstrates that AT&T sought through its license agreement to protect any product that a license made after having been given access to Unix."

The motion also claims that one of the witnesses was recently convicted of felony insurance fraud.

The motion asks the court to compel IBM to produce the requested documents and delay any hearing on summary judgment until such discovery requests have been satisfied.

9 comments

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Desperation
SCO is a guaranteed loser but their ego won't let them recognize
the stupidity of their legal squabbles. It's time that some court
put SCO out of their misery. It just may be Bankruptcy Court that
does it.
Posted by Earl Benser (4310 comments )
Reply Link Flag
So quick to judge...
There is rarely an obvious loser. If IBM comes out of this unscathed, I will be surprised. Regardless, if IBM continues to neglect its obligations under the law, it will only serve to bolster SCO's case and make IBM look guilty.
Posted by David Arbogast (1709 comments )
Link Flag
One has to wonder what SCO expects to achieve
I agree with those that note this article is just another SCO press release. SCO has already lost on all the Linux copyright and infringement issues. There is no Linux code infringing on Unixware or System V -- that's been settled by the court. To the extent there is infringement, it is System V and Unixware infringing on Linux.

Most importantly, however, SCO didn't produce any evidence of infringing code, and the court ruled that they cannot fish for it. So they lost that one.

SCO therefore also lost the part where they were trying to intimidate Linux users into paying for licenses they are not legally (according to the FTC) bound to pay for, even if there had been infringing code. That's also settled.

The only remaining issue is SCO's desire to steal IBM's homegrown code that was developed based on Unix. IBM does not have to show the homegrown code -- that's also been decided. The code in question was developed under the GPL and is already publicly available. If SCO wants to see it, nobody is stopping them.

The court has ruled, again, that IBM does not have to show any proprietary homegrown code. SCO has to show code first. The court made clear that the code SCO shows cannot be any code that it claimed in the Linux infringement part of its original lawsuit -- that code is no longer at issue.

So one wonders what SCO hopes to gain by these tactics. Their stock is already in the basement. They've alienated most of their customers, so they're not worth anything as a company for a takeover either. These lawsuits have made it clear they don't even have exclusive ownership of the IP they claim they own. The main thing they are likely to get out of all of this is a hefty fine from the court for contempt for abusing the courts by continuing these frivolous tactics.

I have to wonder what SCO expects to achieve.
Posted by dhk (39 comments )
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