The Lindon, Utah-based Unix vendor was taken to task for its legal tactics by Magistrate Judge Brooke Wells, who is handling the discovery portion of the case, as she granted most of an IBM motion to limit SCO’s claims to those where is has provided specific evidence.
Given the amount of code that SCO has received in discovery the court finds it inexcusable that SCO is in essence still not placing all the details on the table, wrote Judge Wells. Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole.
It would be absurd for an officer to tell the accused that ‘you know what you stole I’m not telling’. Or to simply hand the accused individual a catalog of Neiman Marcus’ entire inventory and say ‘it’s in there somewhere, you figure it out’.
That is essentially what SCO has tried to do, according to IBM, which asked the court in February to throw out most of SCO’s claimed evidence against it as the Unix vendor had failed to identify the versions or line numbers of the Unix code it claimed had been inappropriately transferred to Linux.
IBM had asked the court to throw out 198 of the 293 items of evidence SCO filed with the court under seal in January. At the time SCO said the filing reflects the pervasive extent and sustained degree as to which IBM disclosed methods, concepts, and in many places, literal code, from Unix and Unix-derived technologies in order to enhance the ability of Linux to be used as a scalable and reliable operating system.
The filing did not contain enough detail for IBM, however, and the court has largely agreed with the systems giant, despite SCO’s rebuttal that: IBM has ready access to the engineers who made the disputed disclosures to assist in identifying the nature of the contribution.
SCO’s arguments are akin to SCO telling IBM ‘sorry we are not going to tell you what you did wrong because you already know’, wrote Judge Wells, adding that she had found that the company was acting willfully to hide its evidence from, and prejudice, IBM.
In the view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put ‘all the evidence… on the table’, she wrote, having previously noted given SCO’s own public statements… it would appear that SCO had more than enough evidence to comply with the court’s orders.
SCO originally sued IBM in 2003, claiming that Linux contained code from its Unix System V code base but backed away from misappropriation of trade secrets claims against IBM in favor of breach-of-contract claims.
At its SCO Forum event in August 2003 SCO said that it that it had used pattern recognition matching technology to identify 1.1 million lines of Unix code from 1,549 files in the Linux operating system.
Eighty lines of code is fairly replaceable, but what maybe people are just starting to get their arms around is that rather than 80 lines of code we’re talking about millions of lines of code, said CEO, Darl McBride, at the time.
It is not the first time that SCO’s public statements have come back to haunt the company.
Viewed against the backdrop of SCO’s plethora of public statements concerning IBM’s and others’ infringement of SCO’s purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO’s alleged copyrights through IBM’s Linux activities, wrote Judge Dale Kimball in February 2005.
Aside from being prejudicial against IBM, Judge Wells also found that without more detail it would be impossible to answer some of the key questions at the heart of the case. For example, is the code that comprised the method or concept still in use in Linux. If not, then damages may become nominal instead of in the billions, she wrote.
Or it may be possible that the code comprised a method or concept [that] was already disclosed pursuant to some other license such as the BSD License, she added.
The Judge did, however, agree with SCO’s argument that some of the claims related to items that were not necessarily substantiated by source code. It therefore denied IBM’s motion as it related to a handful of items, including an error event subsystem in Dynix, log event avoidance using PTX, and Dynix developers potential breaching contract by contributing to Linux.
All in all, IBM’s motion was denied for 11 of the 198 items it tried to throw out, leaving 106 items of evidence in front of the court in total.
