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
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.
