Court tells SCO to Show Code in IBM Dispute

A U.S. Court has directed SCO Group to place its cards on the table and show detailed code to back up its lawsuit against IBM involving copyright infringement and breach of contract over Linux.

In an order signed by U.S. Magistrate Judge Brooke Wells, SCO has been told to “provide and identify all specific lines of code that IBM is alleged to have contributed to Linux from either AIX and Dynix.”

The ruling could help jump-start — or at least move along — the case, which has been stalled in recent months amid a series of arcane legal motions between SCO and IBM.

Indeed, the court set a series of deadlines for compliance with its order, the first of which comes April 17.

But the onus isn’t all on SCO. In its order, the court told IBM to provide to SCO some 232 different software releases of AIX and Dynix. SCO has been seeking the code as part of the legal “discovery” process, under which litigating parties get to look at information from their opponents which are
relevant to the case.

IBM was also directed by the court to “provide documents and materials generated by, and in possession of employees that have been and that are currently involved in the Linux project.”

Though the court order didn’t say so, those documents are being sought by SCO because it wants to get a look at correspondence between IBM chief executive officer Sam Palmisano and IBM vice president for technology and strategy Irving Wladawsky-Berger.

The information came to light in a [separate] hearing held before Judge Wells on Feb. 5. In a transcript obtained by, SCO attorney Mark Heise told the court: “We want the documents and materials from Sam Palmisano [and] from Irving Wladawsky-Berger, the key executives that are intimately involved in the Linux project.”

Later in that hearing, speaking about SCO’s desire to see copies of IBM’s AIX and Dynix software, Heise said: “Sam Palmisano is a critical witness in this case. The fact that he is the CEO of IBM does not make him somebody who is not to be put on this list.”

In this case, “list” refers to a list of people SCO from which SCO is seeking documents.

Reached at IBM, a spokesman said told “It’s our policy not to comment on the ongoing litigation with SCO.”

In pure legal terms, Judge Wells’ just-issued ruling gets the case back on track because it lifts a stay, or stoppage, of discovery that she put in place last December. At the time, IBM had asserted that SCO wouldn’t show Big Blue enough of the code it allegedly infringed in order for IBM to be able to defend itself in the case. Wells issued the stay, on the condition that it would likely be lifted once SCO showed that code.

Since SCO recently moved to begin to identify at least some of the code at issue, the stay has now been lifted.

Along with the major thrust of the new order that SCO provide complete and detailed specifics on allegedly infringing Linux code, the order has other provisions. For one, SCO must identify Unix System V code “from which IBM’s contributions from AIX or Dynix are alleged to be derived.” SCO must also identify any code at issue which it has distributed to third parties.

Other provisions of the court order affecting IBM include the directive that IBM provide the names of 1,000 potential trial witnesses.

The ruling follows a court decision last week allowing SCO to add the copyright infringement claims to its suit against IBM. (In legal papers, IBM called the copyright allegations “meritless.”)

While SCO added the copyright claims, it also deleted a trade-secrets charge from its original suit. Should SCO ultimately prevail in the case, it is estimated that potential damages in the suit could, at the high end, top $3 billion.

Separately, SCO is currently enmeshed in a suit against Novell.
In addition, Red Hat has sued SCO to stop the latter from making what it called “untrue” claims about its business.

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