IBM Takes New Tack in SCO Legal Battle

In its ongoing war with SCO over Linux and Unix IP, IBM is trying a new tactic: declaring that SCO has no rights over its "homegrown" Unix code.

IBM is trying to knock out SCOs Linux intellectual property claims with a new tactic.

In its latest motion, filed Friday in the U.S. District Court for Utah, IBM argues not only that The SCO Group Inc. has been unable to prove that IBM ever "dumped" Unix System V code into Linux, but also that there is "less than one percent of the total lines of (System V) code in AIX and Dynix," and that if IBM placed any of the rest of the 99 percent of their own "homegrown" code into Linux, IBM had a perfect right to do so.

AIX and Dynix are proprietary versions of Unix that belong to IBM.

Kelly Talcott, an IP (intellectual property) attorney and partner at Kirkpatrick & Lockhart LLPs New York office explained: "The focus of IBMs motion is not on the Unix System V code that SCO claims IBM copied. It is instead on source code that IBM claims was developed independently, is not subject to copyright infringement claims, and so (says IBM) can freely be contributed to Linux." IBM does not say, however, that it actually had contributed any code to Linux.

"Essentially, IBM seeks to remove its homegrown code from the cloud of suspicion caused by the SCO lawsuit," Talcott continued. "For purposes of this motion, the 70,000 or so lines of code that SCO claims IBM copied from Unix are essentially irrelevant. IBM is seeking a determination that it is free to contribute other code, not directly in dispute as being infringing, as open-source software." Thus, IBM is saying that, if it had wanted to, it could have contributed AIX and Dynix code to Linux.

This also means that IBM is now adding to its legal fight with SCO the argument that IBM doesnt need to show SCO any more of its AIX and Dynix source code. And, as part and parcel of that, IBM argues that SCO has no right to tell IBM what it can do with its own homegrown Unix operating system code.

Pamela Jones, editor of Groklaw, a SCO news and opinion site, thinks this could be the beginning of the end for SCOs case, declaring, "If IBM wins this motion, I think I might be in my red dress soon."

IBM also pointed out in the motion that as of August 3, SCO was still offering the Linux 2.4 kernel for download. Therefore, since SCO was still knowingly offering the code, containing what they claimed was their IP under the GPL; SCO had knowingly given their source code to the world under the GPL. This, IBM lawyers argue, renders SCOs case moot.

However, SCO, despite recent legal setbacks in its cases with AutoZone and DaimlerChrysler, shows no signs of backing down from its broad-ranging legal claims.

In an eWEEK interview, SCO CEO Darl McBride said, "We have put those claims in front of the courts; well get in front of them and win, and well be back in the game."

Regarding this latest IBM move, SCO spokesperson Blake Stowell said, "SCO disagrees with IBMs interpretation of their contractual obligations regarding derivative works. The SCO Group is the sole owner of the AT&T Unix System V software licensing agreements, including the software agreement that IBM entered into when they licensed Unix System V in order to create their derivative work known as AIX."

Stowell continued: "We allege that IBM, through its contributions of AIX into Linux, is in breach of this software agreement. According to IBMs interpretation from their most recent filing, the 1985 UNIX software agreement would provide less intellectual property protection than if no contract had been written at all. We look forward to proving our case in a court of law in the near future."

Talcott said he is looking forward to this. "By filing a summary judgment motion on the four breach-of-contract claims, IBM is telling SCO to put up or shut up," she said. "To defeat IBMs motion, SCO must convince the court that the material facts that support IBM are actually in legitimate dispute. Even if IBM loses this motion, it may gain important insight into how SCO plans to prove its case at trial."


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