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By Steven Vaughan-Nichols  |  Posted 2005-01-21 Print this article Print

Still, she said, "it is a theoretical concept, and frankly hard to imagine how that could occur with much significance in the present context. The burden will be on SCO to analyze an enormous amount of data to try to show that some one or more of thousands of programmers were somehow sparked by the Unix code in their contributions to Linux-based systems in a way that is meaningful but did not result in substantial similarity between the Unix and Linux code. "It seems like a gamble that will cost SCO a lot of money without any clear prospect of success," Hurst said.

Kelly Talcott, a partner with international law firm Kirkpatrick & Lockhart Nicholson Graham LLP, also saw this point.

"The judge [has] highlighted another possible avenue of liability for IBM that has not received as much attention as SCOs copyright claims: breach of certain software agreements that, according to SCO, restricted IBMs use of certain software products for internal business purposes," said Talcott.

"The magistrate judge pointed out that SCOs breach of contract claims could end up playing a more important role in the case than the copyright infringement claims because they could implicate code that does not infringe any SCO copyright," she said.

But with all that in mind, Talcott emphasized that "the ruling only addressed whether IBM had to produce the code [as well as some other discovery issues]. It is not a ruling on the viability or not of SCOs breach of contract claims. But, by highlighting IBMs potential liability under the contract claims, the magistrate judge has given IBM something to think about."

"It is important to point out that SCO has so far not proven its case against IBM," said Stacey Quandt, senior business analyst with the Robert Frances Group.

All in all, "at one level it is not terribly significant, given the general deference to broad discovery built into the U.S. legal system," Talcott said. "Anything that is reasonably likely to lead to the discovery of admissible evidence is fair game for discovery."

Allonn Levy, a partner in the San Jose, Calif., law firm Hopkins & Carley, agrees that SCO hasnt won much of a victory.

"After a series of very public setbacks, SCO is looking to demonstrate a win in its high-profile Linux cases," Levy said. "Unfortunately, Judge Wells order probably isnt as dramatic a victory as SCO would like. In reality, the court issued a fairly routine discovery order compelling IBM to respond further to certain discovery and ordering it to turn over certain source code and documents."

Next Page: Order not "surprising."

Steven J. Vaughan-Nichols is editor at large for Ziff Davis Enterprise. Prior to becoming a technology journalist, Vaughan-Nichols worked at NASA and the Department of Defense on numerous major technological projects. Since then, he's focused on covering the technology and business issues that make a real difference to the people in the industry.

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