How Significant Is SCOs Win?

Lawyers and analysts disagree on how important SCO's small victory over IBM is in the grand scheme of things, but everyone agrees that it means that their Linux/Unix war will continue on ... and on ... and on.

How significant was The SCO Group Inc.s victory in its discovery motion over IBM in the companies ongoing battle over Linux copyright and Unix contract issues? It depends on which analysts and lawyers you talk to about Magistrate Judge Brooke Wells decision.

Wells granted SCOs discovery motion, in which the Lindon, Utah, company had demanded that IBM turn over the source code of "all versions and changes" of IBMs AIX and Dynix Unix operating systems. Along with this, she ordered IBM to turn over the "programmers notes, design documents, white papers, the comments and notes made by those who did the changes [to AIX and Dynix]."

"This is a significant and much needed victory for the SCO Group," said Laura DiDio, a senior analyst at the Yankee Group.

"Its apparent to all that SCOs fortunes are inexorably linked to the ongoing lawsuits. They wax and wane with each new revelation or setback," observed DiDio.

"Judge Brooke Wells decision to compel IBM to turn over the programmers notes, design documents, white papers, the comments and notes made by those who did the changes [to AIX and Dynix], the names and contact information of individuals who made changes and what changes they specifically made is central and crucial to this case," she said.

"When you strip away all the hype and hyperbole, on both sides, SCOs basic claim comes down to its allegations that IBM illegally inserted derivative Unix code that it owns into Linux." DiDio said.

/zimages/4/28571.gifClick here to read about the state of SCOs business.

DiDio also found the following comments from Wells possibly indicative of the latitude she may grant SCO if and when this case ever gets to court:

"While the court agrees with IBM that this case concerns code that may have been improperly contributed to Linux, the court disagrees with IBMs narrow interpretation of relevant code. Under a plausible reading of the contract, it is possible that protections and prohibitions exist for code contributed by IBM to Linux. This code that eventually ended up in Linux may not look similar to the code initially provided to IBM under the contract, but if it was based on modifications, elements or derivations that are protected under the contract then it is clearly relevant. In contrast to IBMs argument this protection may even extend to homegrown code depending on the interpretation of the contract," Wells wrote.

Such comments "clearly favor SCOs position," DiDio said. And shes not the only one who sees it that way.

"The ruling contains some comfort for SCO … on the ultimate merits of the question whether IBM has a contractual obligation regarding the Unix code that is broader than the obligation imposed by copyright law," said Annette Hurst, director and co-chair of the Intellectual Property Practice Group in the San Francisco office of Howard Rice Nemerovski Canady Falk & Rabkin.

"The magistrate judge summarized the law on this issue in SCOs favor," said Hurst.

If this leads to a "ruling in SCOs favor on the issue [it] could mean a problem for IBM and other Linux users if SCO could show that the Linux code derived from contractually protected code in a way that might not otherwise violate the copyright law because it does not meet the derivative work standard," Hurst said.

Next Page: Burdens on SCO.