Posted on 07/21/2006 7:38:14 AM PDT by ShadowAce
The SCO Group versus IBM lawsuit is growing ever more desperate--and ever more weird.
The latest twist: Buried in a new filing from SCO (nyse: SCO - news - people ) is a claim that International Business Machines (nyse: IBM - news - people) destroyed evidence by ordering its programmers to delete copies of software code that could have helped SCO prove its case.
SCO alleges this happened in 2003, yet the company has never talked about it in public before.
However, an attorney for SCO says the code deletion is one reason why the Lindon, Utah, software maker has been unable to comply with a demand that it produce examples of allegedly stolen code.
"It's kind of hard for us to do that," says Brent Hatch, an attorney with Hatch, James & Dodge in Salt Lake City, "because we don't have it. It was destroyed before it could be given to us."
SCO sued IBM in March 2003, claiming IBM took code from Unix, for which SCO holds some copyrights, and put it into Linux, which is distributed at no cost.
The case is scheduled for trial in 2007 and could have huge implications for the popular Linux operating system, which is promoted by Red Hat (nasdaq: RHAT - news - people), Novell (nasdaq: NOVL - news - people), Hewlett-Packard (nyse: HPQ - news - people) and others.
Last month, SCO suffered a setback when Magistrate Judge Brooke C. Wells of the U.S. District Court in Utah tossed out two-thirds of SCO's claims against IBM, because SCO had refused, after repeated requests, to provide specific details about which lines of code were stolen.
Now SCO has filed an objection asking the judge overseeing the case, Dale A. Kimball, to overturn the Wells ruling.
Toward the end of its objection, SCO claims IBM deleted copies of two versions of Unix, called Dynix and AIX, which could have helped SCO prove its case.
SCO claims the move was "egregious" and represents "spoliation of evidence," a potentially serious charge.
"Weeks after SCO filed its lawsuit, IBM directed 'dozens' of its Linux developers...to delete the AIX and/or Dynix source code from their computers," SCO's objection claims.
"One IBM Linux developer has admitted to destroying source code and tests, as well as pre-March 2003 drafts of source code he had written for Linux while referring to Dynix code on his computer," SCO says.
Hatch, SCO's attorney, says SCO learned about the destruction of code when it took depositions from IBM programmers. This is the first time SCO has made the allegation in public, though Hatch says the claim was part of a motion SCO filed in March 2006, which has remained sealed.
Hatch says the allegation has become relevant now, because it helps explain why SCO could not meet demands to cite source code.
IBM declined to comment, citing a policy of not discussing ongoing litigation.
In her sharply worded ruling, Wells criticized SCO's conduct in the case and seemed to indicate she was annoyed with the company. "I don't know if that's true or not, but that's a question I'm asking myself," Hatch says.
Hatch concedes the Wells ruling represented a setback for SCO. But he says SCO still has a strong case.
"If the judge had thrown out the case, that would be a real downer. But the claims are still there. The damages are still there," Hatch says.
In appealing the Wells ruling, SCO is claiming that Wells made decisions on things that are not part of her responsibility. "We're saying she overstepped her bounds," Hatch says.
Linux fans cheered the Wells ruling, viewing it as a sign that SCO's case is doomed. Hatch says they're celebrating too soon.
"You can't read big things into all these little wars," Hatch says. "It's like saying the North didn't win the Civil War just because a couple of battles were bad for us."
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| Sounds like the dog ate it defense. Or in this case prosecution. Having been a professional programmer type for 35+ years, hackers don't ever throw away all copies of any source code. I still have several boxes of 80 column punch card programs and rolls of punched paper tape programs that I haven't used in 35 years but refuse to toss. |
This isn't over yet?
Groklaw discussion at: http://snipurl.com/tl66
It may get its own topical thread, given that the
ever-gullible Forbes has now fallen for it.
GL readers point out that:
1. The magistrate judge was fully aware of that SCO whine,
and ignored it in her ruling.
2. The characterization of what may have been routine
housecleaning is spin by SCO.
Hatch? Utah? Why does that sound familiar? Nah, couldn't be a connection.
< maniacal voice-over > NO!!! And it never will be!! < /maniacal voice-over >
'scuse me? If you don't have any evidence of wrongdoing, what prompted the lawsuit in the first place?
"I still have several boxes of 80 column punch card programs and rolls of punched paper tape programs that I haven't used in 35 years but refuse to toss."
Dude, have you thought about seeking professional help? I mean, I kept some old System 370 Assembler manuals but punch cards? :)
The fact that the judge has let this trial continue with BS like this thrown about, shows she's in on the fix. They are all just waiting for IBM to dig deep and offer a settlement.
$$$
SCO - "IBM's dog ate the source code."
This little saga seems to just be even funnier by the day...8^)
Remember when SCO sold UNIX for money? Happy days.....
My first daughter's birth was announced by mailing punched cards. Even then, in 1983, it was very hard to find a keypunch.
Yeah--it's why I try to keep up with it. I enjoy watching SCO dig themselves deeper with every court filing.
Yeah--but that was a different company. The current SCO has nothing in common with the one you remember.
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