SCO hits iceberg

Steven J. Vaughan-Nichols

Jun. 29, 2006

On June 28, Magistrate Judge Brooke Wells ruled largely in favor of IBM's "Motion to Limit The SCO Group Inc.'s Claims Relating to Allegedly Misused Material." This means that the vast majority of SCO's claims against IBM for misusing Unix code in Linux have been thrown out.

Since SCO first began claiming that IBM had placed its Unix intellectual property into Linux, opponents to its arguments, such as Linus Torvalds [,1895,1420181,00.asp ], have demanded that SCO show precise proof for its claims. In its motion, IBM took a similar tack.

IBM had asked that the US District Court in Salt Lake City dismiss 198 of SCO's claimed 294 examples of IBM contributing Unix code to Linux. IBM argued that the court should grant this because, "SCO does not provide enough particularity even to identify the versions or line numbers for the allegedly misused material," in its memorandum supporting this motion.

"In fact, no versions, files or lines of Unix System V code are identified; no versions, files or lines of Dynix or AIX code are identified as misused; and no specific versions or lines of Linux code are identified," IBM's attorneys said [ ] at the time.

Now, with the exception of ten items, the court has come down firmly on IBM's side.

Judge Wells wrote [ ], "Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus, they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that 'you know what you stole I'm not telling.' Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say 'it's in there somewhere, you figure it out.'"

Beyond this colorful tale, Wells also wrote that, "The court finds that SCO has had ample opportunity to articulate, identify and substantiate its claims against [IBM]. The court further finds that such failure was intentional and therefore willful based on SCO's disregard of the court's orders and failure to seek clarification. In the view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put 'all evidence . . . on the table.'"

SCO may appeal this decision. "Our legal team is reviewing the judge's ruling and will determine our next steps in the near future," said Blake Stowell, SCO's communications director.

While there are other issues still to be decided in court, with over two-thirds of SCO's claims now thrown out, SCO's lawsuit has clearly collided with a Titanic-sized iceberg.

Copyright 2006