Motion favors IBM in Unix dispute

Lindon-based SCO Group Inc. took a hit Friday in its federal lawsuit against International Business Machines Corp.

SCO and IBM are locked in suits and countersuits about whether IBM violated its license with SCO by placing parts of SCO's Unix computer operating system source code into Linux, a freely distributed operating system that is developed and enhanced by contributors worldwide.
U.S. Magistrate Brooke Wells on Friday ruled for IBM in its motion to force SCO to provide answers to IBM's questions. SCO will have 30 days, likely starting next week, "to identify with specificity the source code" it claims IBM put into Linux in violation of the license, Wells ruled.
Wells noted that the matter has followed a circular pattern. Each side has said it needs more information from the other party before it can provide the other party with information it wants.
IBM attorney David Marriott said SCO claims IBM took methods and trade secrets from Unix and put them into Linux "but won't tell us exactly where they are."

Both Unix and Linux contain millions of lines of code, but SCO has yet to show IBM a single line of violating code, he said. Instead, he said, SCO has provided many documents without specifics. "We've been given haystacks of information and been told, 'Figure it out for yourself,' " he said.
Marriott said SCO executives have talked a lot about their "great evidence" but haven't presented it to IBM. He added that SCO's allegations are meritless.
Meanwhile, SCO lawyer Kevin McBride tried unsuccessfully Friday to convince Wells that SCO needed more details from IBM before the matter could move forward. He said it is "clear" that IBM put parts of Unix into Linux, but "we just don't know what it is."
SCO wanted IBM to be forced to provide SCO with all versions of IBM's own Unix product, called AIX, so that SCO could determine where any license violations occurred. Then SCO could provide "more concrete answers" to IBM's questions, he said.

"We want to know what part is trade secrets, what part is contract, what part is copyright, until we've seen all of IBM's contributions," McBride said. "We can't point out what we don't know. . . . It's important we get a scalpel here and see exactly what we're looking at."
Marriott said that if SCO wants to know what IBM contributed to Linux, that information can be found on the Internet.
Friday's hearing also involved comparisons of data supplied by the parties. SCO says it has provided 100 more CDs of information than SCO has received from IBM. Marriott said IBM has provided the equivalent of 1 million pages of information to SCO and will provide more. But he said the company does not want to provide details about all versions of Dynix — developed by Sequent Computer Systems, now owned by IBM — and AIX because it is irrelevant to the case and totals more than 40 million pages.

"We want the 40 million pages," McBride shot back. "We'll digest it."
Wells scheduled a hearing Jan. 23 to consider SCO's motions. She postponed all other discovery activities in the meantime.
The SCO vs. IBM legal battle has been viewed by some observers as a tiny company taking on a corporate behemoth. McBride, brother of SCO chief Darl McBride, added to that perception during the Friday hearing, twice referring to SCO as "our little company."

Wells noted that the matter has followed a circular pattern. Each side has said it needs more information from the other party before it can provide the other party with information it wants.

Such unbiased reporting. </sarcasm>

It is the plaintiff's responsibility to specify what the alleged infringements are. Since Linux IS open source, SCO can very easily compare the Linux source code with the disputed code.

SCO has not done this, and can't because SCO themselves planted their own source code in Linux.

Game, set, match.

This is the "put up or shut up" that many of us have been waiting for. Finally, SCO will have to specify what has been allegedly infringed, as one would expect is common sense.

They shouldn't have much hope though, since in the snippets they've shown so for they didn't in fact have the copyright on the code for which they were claiming infringement.

I'm wondering whether or not to read anything into the absence of their high-priced lawyer (Boies) from the hearing. It could be something as simple as his unavailability due to scheduling conflicts, or due to a perception that this was not the right arena to bring out the 'big guns' (but it sure looks like SCO got the riot act read to them at this pivotal hearing - pivotal, that is, in continuing the SCO charade - even if it was done quietly by the judge). But others are speculating that Boies would certainly have known that SCO was playing from a very weak hand at this hearing, and so maybe Boies' absence was engineered to permit him to save face. But in a few short weeks the real "put your cards on the table" deadline will be staring Boies in the face, and SCO is gonna want to get something back from their $$millions sooner rather than later...

I'm wondering whether or not to read anything into the absence of their high-priced lawyer (Boies) from the hearing.

Interesting that SCO was represented by McBride's brother in this hearing...

Meanwhile, SCO lawyer Kevin McBride tried unsuccessfully Friday to convince Wells that SCO needed more details from IBM before the matter could move forward. He said it is "clear" that IBM put parts of Unix into Linux, but "we just don't know what it is." SCO wanted IBM to be forced to provide SCO with all versions of IBM's own Unix product, called AIX, so that SCO could determine where any license violations occurred. Then SCO could provide "more concrete answers" to IBM's questions, he said. "We want to know what part is trade secrets, what part is contract, what part is copyright, until we've seen all of IBM's contributions," McBride said. "We can't point out what we don't know. . . . It's important we get a scalpel here and see exactly what we're looking at."

It's just a giant fishing expedition for SCO

Interesting how this piece leaves out any mention of the most significant part of the ruling.

Until The SCO Group identifies specifically what code is alleged to be misappropriated, all discovery on the case has been suspended.

This was an unusual move for the judge, and signals exactly how serious SCO's problem is. If they don't provide the specific code in the next 30 days, this case will most likely be tossed out of court at the next hearing.

It's interesting that the author of this piece missed one of the most important aspects of the Judge's ruling.

Until The SCO Group complies with this order and identifies the allegedly misappropriated code, all discovery in the case has been suspended. So, the clock is stopped completely on this action until The SCO Group puts the offending code on the table.

This was a serious blow to The SCO Groups case, and they now have to show exactly what they are complaining about or this case is going to be dismissed very quickly after the deadline is up.

The moment we have all been waiting for! I'm expecting SCO to try to appeal and delay the deadline. You?

I, for one, am hoping that SCO details its evidence against IBM and others sooner rather than later. IBM's customers deserve to know what they're facing; particularly in light of the fact that IBM refuses to indemnify them against liability.

BTW, this motion is a wash for IBM. Yes, it gets SCO to tell it what it thinks is infringing. But IBM has to hand over to SCO all of the source code that it contributed to Linux.

Until The SCO Group identifies specifically what code is alleged to be misappropriated, all discovery on the case has been suspended.

Here's what's going to happen, in my view. SCO will detail some of IBM's "infringements". IBM will then be forced to hand over all of the code that it added to Linux. SCO will examine that code and will probably amend its complaint to include other infringements. So, really, it's still very early in this case -- and by no means does this motion foreclose SCO from amending its complaint later. It's more of a game of chicken at this point.

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