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SCO down but not out in lawsuit against IBM

SCO's longstanding brawl with IBM is tilting in Big Blue's favor after a judge threw out 194 of the Unix vendor's claims. But the Linux community should stay tuned, said one legal expert. This case is far from over.

Proprietary Unix vendor The SCO Group Inc. has captured the attention of the Linux community in a legal tussle with IBM that started with a copyright infringement suit that SCO filed against Big Blue in 2003.

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In the latest twist from the ongoing case, Judge Brooke Wells ruled in June to whittle away 194 of the 294 claims brought forth by the Lindon, Utah-based software company.

Despite the ruling, one legal expert said the case is far from over. SCO may have been dealt a series of setbacks almost from the beginning, but don't count the company out just yet, said Edward Naughton, a partner with Boston-based Holland+Knight LLP.

Naughton debunks criticism surrounding SCO's filing earlier this month that accuses IBM of making its developers destroy two versions of Unix, called Dynix and AIX, which could have helped SCO prove its case.

In a recent interview with, Naughton said. the case could get even more interesting as issues become more focused in 2007. SCO alleges the deletions happened in 2003, yet it has not talked about them in public before. Is this normal operating procedure for a trial like this?

Edward Naughton: For this kind of trial it is not surprising that this comes up now. But what is a little interesting is the way it came up. [SCO] hasn't filed a motion with the court on this yet, and ordinarily one would bring it to the attention to the court in the form of a motion. If and when SCO files that motion, they will try and prove that the docs destroyed were harmful to IBM and helpful to SCO. In order to get there, they will have to show something more than just the idea that the actions were just a mistake -- they will have to prove that there was some kind of malicious intent.

What can we expect to hear from IBM in light of these claims?

Naughton: First, we'll probably hear IBM say that SCO is bringing this up in response to a ruling by the magistrate that has thrown out a lot of its claims. They would be appealing to the presiding judge to overrule what the magistrate had found, which was a fairly stinging ruling [that dismissed a majority of SCO's claims]. IBM will also point out that there is a right way to bring this accusation up -- and that is by a motion -- and that SCO has not done that.

How might IBM respond to the latest SCO claim concerning deletion of electronic evidence?

Naughton: This kind of argument comes up more and more in technology cases today and cases that involve electronic evidence. And, very often, this sideshow takes center stage because like the old adage says, 'the cover up is worse than the crime.'

Now, I'm not saying this is true of the SCO case because there is still a lot under seal, but very often if you don't have a lot on the substance of a claim, a party will try to say they don't have the evidence they need because it has been destroyed.

At this point, with public perception of the case framed and the headlines go against SCO -- is there a future for this case besides a victory for IBM?

Naughton: Oh, I still expect SCO is capable of receiving a favorable ruling because there are still 100 instances of the original 294 items it claimed IBM had included in the Linux kernel left to argue, and SCO has also appealed that ruling. [SCO is] saying this isn't about specific code being copied, but instead it's about methods and approaches and a higher-level approach. Even if SCO doesn't win on appeal, they still have those 100 claims.

That said, it is still hard to know the significance of those remaining claims, and I expect IBM will say they are nothing substantial, just programming conventions that are not unique to SCO Unix. But, there is a sense -- because this is a blockbuster case -- that a lot of announcements about SCO, and the alleged misappropriation of code, that it's been all sizzle at the outset and we haven't yet seen the steak.

It's been a marathon three years since the initial filing in 2003. Is the length of the SCO case normal?

Naughton: This is still the discovery period, and until that gets sorted out, what we will see next is going to be motions filed -- motions for summary judgment. The judge can then rule on these without trial because all facts are agreed upon by both parties. In this period, I think we'll definitely hear IBM say that the code included in Linux is not unique to SCO or to the AIX products, and that it is just generally accepted programming conventions.

It will be those motions that give greater insight in this case, as they will put more and more focus on the critical issues. In the motions phase, the parties submit written papers and then argue back and forth before the judge. It could be early 2007 before the ruling on these motions begins, however.

You also practice in the field of open source licensing. Could you give an update on what one or two of the main issues are today?

Naughton: Straightforward advice I give would be on how to best use open source in clients' product development strategy. These clients include companies that were proprietary companies that are cautious about open source products but are nonetheless recognizing the benefits and efficiencies of that software. There are questions regarding knowing what the implications are, about what licenses fit in with their software strategy.

If your license model is a per-seat model, you need to think carefully about integrating GPL code into your product. Develop a strategy first. Beyond that, you need to decide if your company is going to help the open source community by contributing back to it.

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