By Stephen Shankland
http://news.com.com/Judge+slams+SCOs+lack+of+evidence+against+IBM/2100-7344_3-5570265.html
Story last modified Wed Feb 09 21:35:00 PST 2005
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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