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Court Orders SCO to Spell Out its Case against Linux

Court Orders SCO to Spell Out its Case against Linux

A Utah judge last Friday ordered the SCO Group to turn over to IBM evidence that IBM copied Unix code into Linux.

The discovery ruling, which SCO enemies celebrated as a victory over the company currently more loathed than Microsoft, granted a motion to compel that IBM filed November 6 because SCO didn't "provide meaningful answers" to IBM's first and second set of interrogatories or produce documents "responsive to IBM's document requests, stuff IBM claims SCO could have produced four months ago.

IBM says the information "goes to the core of SCO's case" and its assertion of rights over Linux.

One major ISV called the ruling "an early Christmas present."

Any celebrations might be premature, however, since SCO is promising to open a new front and sue IBM for copyright infringement, a charge it's been threatening to use to sue big Linux end users like Google for failing to pay the royalties SCO's demanding.

SCO is currently suing IBM for $3 billion in damages based on contract law and trade secret violations. SCO struck the position that IBM should reveal all its code first and that SCO would then identify where the alleged infringements occurred and what kind of infringements they were - contract violations, trade secret violations (stemming from Project Monterey) or copyright violations.

SCO, in turn, wants all 40 million lines of IBM's AIX code, which IBM lawyer David Marriott told the judge IBM would only cough up if compelled by court order. SCO also wants all AIX development notes.

SCO has a motion to compel this AIX discovery from IBM but the court delayed ruling on it until January 23 after the IBM motions are satisfied.

According to Groklaw, SCO said in court that it knew IBM contributed stuff to Linux, "We just don't know what it is." It said it knew IBM contributed stuff because of IBM's boasts in the press.

Marriott was quoted as telling the court, "We don't think they had any evidence at the time they filed the case and we don't think they have any evidence now."

SCO, which has been roundly castigated by the Linux community for sitting on its evidence, was also ordered to detail all the issues it has with Linux, not just the code it alleges IBM filched from Unix and put in Linux.

IBM also wants copies of all of SCO's Unix and Linux code. It wants to know whether SCO ever distributed allegedly tainted code and on what terms and it wants copies of the license agreements SCO signed recently with Sun Microsystems and Microsoft.

SCO has claimed that at least 20%-25% of Linux, something like a million lines of code in the upstart operating system, is tainted. As part of the twin order, SCO has to explain to IBM exactly what property rights it rests its claims on.

IBM complained in its motion that SCO gave it source code on a million pieces of paper rather than electronically. IBM claimed SCO was stalling.

SCO will have 30 days to produce what IBM wants but the clock has yet to start, it said. SCO spokesman Blake Stowell, who was not in court, was hazy on the exact deadline but it is believed to be this past Wednesday when the judge's order, which IBM was to prepare, is filed.

If SCO can't produce the discovery ordered, it has to produce affidavits as to why not.

Stowell shrugged off the loss saying SCO's lawyers regarded it as "standard procedural stuff" and all part of the usual jockeying for position that lawyers indulge in.

SCO's famous law team headed by David Boies did not appear in court because of "other obligations," Stowell said. SCO was represented instead by one of its local lawyers, Kevin McBride, the brother of SCO CEO Darl McBride, who according to Groklaw was admonished several times by the judge to stay focused. SCO said the judge, Brooke Wells, was also a substitute for Dale Kimball, who got the case when IBM succeeded in getting it moved out of state court to federal jurisdiction, another loss SCO made little of.

The court didn't have to rule on a motion to compel that SCO had filed seeking a copy of Sequent's Dynix operating system from IBM because IBM came across with the goods late last Thursday, Stowell said. IBM bought Sequent, which ran its version of Unix on Intel machines rather than on RISC hardware, some time ago.

SCO claims that Linux copped significant enterprise-style functionality such as SMP and NUMA from Dynix or Dynix derivative work that SCO claims to have rights to although it acknowledges IBM owns it.

SCO alleges that Linux couldn't have developed so fast into an enterprise player without the caged technology and that, as a result, the economic ground was cut from beneath Unix.

SCO evidently took its chances that a home court might not enforce IBM's motion claiming, as Stowell said, that what IBM sought was "blatantly obvious and that IBM should have known" what SCO's case is. Stowell said SCO's lawyers felt it was "ridiculous" that "we should have to spell it out."

Stowell said that once IBM had the evidence in hand there was no reason why IBM couldn't talk about it if it wanted to, undercutting SCO's strategy to date of keeping the particulars of its case secret, a tactic that has outraged the Linux community. However, according to Groklaw, the discovery is under a protective order.

IBM, meanwhile, has subpoenaed Sun Microsystems, which has paid SCO for an expanded Unix license and has rights to buy into the company, SCO's outside PR house Schwartz Communications and apparently defense contractor Northrup Grumman.

SCO said Northrup is not the mystery Fortune 1000 that SCO has claimed took a Unix license. That company is believed to be Computer Associates.

Schwartz said IBM was after all its communications with SCO.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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