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SCO Stalls for Time

UPDATED: Lawyers for the SCO Group have filed an 83-page memorandum asking the U.S. District Court in Utah to hold off on any decisions regarding IBM until the fact-finding calendar deadline is met next year.

According to filings in the case, SCO is looking to buy time until the court can hear its arguments compelling IBM to release more information. SCO lawyers argue the information -- namely source code they claim was lifted from AIX and Dynix to bolster the open source Linux kernel -- is necessary in getting a successful ruling.

Originally scheduled for Tuesday, the hearing was pushed back to Oct. 19 to give IBM lawyers time to respond to SCO's latest motion to compel discovery.

In a filing called "Memorandum in Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order Dated June 10, 2004," SCO points to a number of actions by IBM that prompted its request to delay any such summary judgment rulings until after Feb. 11, 2005, the final day for discovery. Lawyers point to misrepresentations in the AT&T Unix license agreements, continued delays to the discovery phase initiated by IBM, inconsistent testimony by IBM employees, as well as IBM's failure to produce information that back up SCO's breach of contract and copyright infringement claims.

"By coordinating the accelerated timing of these dispositive motions while it continues to block critical discovery, IBM would achieve what this court's Amended Scheduling Order -- over IBM's stringent objection -- refused to allow IBM to do: force adjudication of this case without adequate opportunity for SCO to develop its proof," the filing states. "IBM's coordinated motions would thus nullify the Amended Scheduling Order."

SCO into the Zone

Also last week, SCO lawyers successfully fended off a filing made last week by AutoZone that would have put an end to any discovery proceedings in its case. In July, a judge ruled SCO needed to prove both its ownership of Unix System V source code and that the Linux kernel code infringes on that ownership, but giving them 60 days to prove AutoZone's actions were causing immediate harm to SCO's business.

AutoZone requested an emergency hearing last week to stop SCO's fact-finding mission, a request that was subsequently denied.

SCO officials believe they'll ultimately prevail against the auto parts manufacturer. They say that when AutoZone's corporate network migrated from SCO's OpenServer technology to Linux, some of the OpenServer code went into the switch.

"In order to cause Linux to function effectively with legacy applications previously designed for OpenServer Software, SCO believes that it is reasonably likely that AutoZone copied SCO's copyrighted material during the migration process," SCO said in a recent filing.

Specifically, SCO believes AutoZone developers copied OpenServer shared libraries , linking code and kernel optimization features. As such, the company wanted permission to see if that is the case.

When SCO can actually get to it is another story. Blake Stowell, a SCO spokesman, said the company would start the discovery process soon, though he didn't mention a date. A statement by the company last week after AutoZone's motion was denied stated only that discovery would begin "in the near future."

SCO's case against AutoZone rests on whether it prevails against both IBM and Novell . Novell claims the copyrights to the Unix System V source code, which it sold to Santa Cruz Operations (a SCO predecessor) back in 1995, were not transferred.

Coupled with its case against IBM for copyright infringement -- SCO maintains IBM staffers bolstered Linux with its Unix source code -- SCO will need to resolve these cases before moving forward with its lawsuits against AutoZone and Daimler Chrysler, another former customer turned Linux user.

internetnews.com's Timeline of the SCO/IBM Case
March 6, 2003 SCO files initial breach of contract lawsuit against IBM for $1B
May 14, 2003 SCO suspends Linux sales, sends 1,350 letters to customers
June 16, 2003 SCO terminates IBM's System V licensing contract
July 21, 2003 SCO gets System V, UnixWare copyrights
August 13, 2003 SCO terminates IBM subsidiary Sequent's System V contract
September 25, 2003 IBM files counterclaim to SCO suit
December 5, 2003 Judge gives SCO 30 days to show infringing code
January 12, 2004 SCO hands infringing code to IBM
February 6, 2004 SCO seeks to add two copyright claims to IBM suit, raise stakes to $5B
February 26, 2004 IBM says it won't contest infringement additions to suit
February 27, 2004 Court adds copyright claims to SCO's IBM suit
March 29, 2004 SCO seeks to split breach of contract, infringement claims into separate trials
March 31, 2004 IBM files second counterclaim to SCO suit
July 15, 2004 Judge gives SCO 90 days to file for preliminary judgment,
otherwise case suspended until resolution of the IBM case
August 18, 2004 IBM calls for summary judgment on SCO's contract claims
 

Corrects assertion in 83-page filing that source code was taken from Unix System V to AIX and Dynix.