The SCO Group Inc. and IBM are locked in a blizzard of claim and counterclaim paperwork in the U.S. District Court in Salt Lake City. Matters reached a climax Wednesday as the court heard arguments on four motions.
In the most important of these, SCO is asking for more time for additional discovery of the facts of the case. But IBM is asking for summary judgment on its claim that it does not infringe on SCOs copyrights concerning SCOs Unix software.
"On its face, SCOs request to stay IBMs motion for summary judgment isnt particularly unusual," said Allonn Levy, an attorney with Hopkins & Carley in San Jose, Calif.
"Courts frequently permit a plaintiff to obtain any necessary discovery before being forced to defend a summary judgment motion," he said. "What makes this request more interesting is that SCO has publicly intimated in the past that it has a strong case and that it is just a matter of time before it prevails on its claims—indeed, some companies have purchased licenses from SCO in order to avoid a perceived risk of an infringement suit."
In light of SCOs other recent public setbacks in the litigation arena, such as a judges ruling in its case against DaimlerChrysler, "observers might legitimately question SCOs public claims of infringement by Linux," Levy said.
"After all, if SCO cannot defend a summary judgment motion, that would defeat most of its claims. Without first obtaining new evidence through discovery, it begs the question: Upon what evidence has it been relying until now?"
According to Associated Press reports, SCO attorney Frederick Fry argued at the hearing, "IBM has no right to require us ... to do this [compare Unix and Linux source code] manually." Further, Fry complained being forced to do could serve to "squander the resources" of a small company in order to do side-by-side comparisons of the code.
SCO executives had proclaimed frequently that the company had proof of SCO Unix code in Linux. SCO first made such claims in August 2003 when SCO senior vice president Chris Sontag and Mark Heise, a partner at Boies, Schiller & Flexner LLP, SCOs primary law firm, presented what they claimed was proof that there was literal and significant copyright infringement of Unix code in Linux.
Afterward, Linux founder Linus Torvalds and other open-source advocates said the code that SCO had publicly shown wasnt infringing.
At the time, Torvalds said SCO was "smoking crack" with its claims that in the SMP (shared memory multiprocessor) part of Linux alone, there were more than 800,000 lines of infringing Unix code
SCO has refused to show its evidence of code stealing except to those who have signed restrictive NDAs (nondisclosure agreements). Open-source supporters such as Eric Raymond and Jeff Gerhardt have offered to review Linux code for Unix violations if SCO would let them see the "stolen" code under more reasonable conditions.
In a letter in August 2003, Raymond, president of the OSI (Open Source Initiative), said the Linux community "wants no part of it [SCOs Unix code] and will remove it." SCO refused this offer.
Despite this rather confusing history, Levy said he thinks the court will grant SCOs request for more time.
"Courts routinely grant some relief to plaintiffs that claim their discovery efforts have been stymied," he said. "It would not be unusual for the court here to permit some type of delay in the hearing and briefing schedule to give SCO the opportunity to obtain whatever evidence it deems necessary.
"Of course, if, as IBM claims, the evidence sought does not exist, then SCO will have succeeded in doing nothing more than delaying the inevitable."
In its attempt to get SCOs copyright claims dismissed, IBM made the same point in its arguments. IBM attorney David Marriott said the company should be granted summary judgment because SCO has been unable to show what lines of Linux code infringed SCOs Unix copyrights and were added by IBM.
Why hasnt SCO provided such evidence? "Simply put, it has none," Marriott said.
According to Blake Stowell, communications director at Lindon, Utah-based SCO, "The judge determined after hearing these arguments that he would take these matters under advisement and provide a ruling in the future."
Some analysts, though, said a delay would only prolong uncertainty. "Summary judgment would end this uncertainty and communicate that SCOs case was without merit and based on ambiguity," said Stacey Quandt, senior business analyst for the Robert Frances Group.