SCO vs IBM Latest: SCO To Request Unsealing of Most Documents, Claims O'Gara

"Near as we can piece together, SCO intends to charge IBM with fraud," O'Gara writes

Maureen O'Gara
LinuxWorld.com

September 18, 2004

"SCO is chafing badly under the propaganda war it's losing to Groklaw," writes Maureen O'Gara, who describes Groklaw [ http://groklaw.net/ ] as "the pro-IBM Web site that's following its $5 billion case against IBM."

Her controversial report continues:

SCO and its legal A-Team of Boies and Silver want the world to start seeing the case the way they see it and are going to file a motion asking the court to unseal most of the documents that are currently under seal.

What it wants aired are IBM's e-mails, which they think tell a killer story about AIX, Dynix and Project Monterey.

SCO says that by the end of the month it is also going to amend its contract suit against IBM - SCO's suit last time we looked was a contract case although that fact sometimes gets lost - and include the Monterey Project based on evidence that turned up in the discovery that IBM has provided so far.

Near as we can piece together, SCO intends to charge IBM with fraud.

Supposedly sometime in the first half of 2000 IBM made a course correction to Linux and away from Monterey, which was the IBM-SCO-Intel initiative to move AIX to the Itanium, a project that Sequent and Dynix ultimately got bolted on to too. It was, as we recall, supposed to be the (as in THE) mainstream operating system.

However, after IBM decided to back Linux, it supposedly concocted a scheme to put out an Itanium product, then kill it immediately, thinking that if it did that it would trigger some licensing rights - that were allegedly non-existent, according to SCO - to use Monterey code for Power and thereby have a product they could use against Sun.

See, IBM was on Unix System 3 and Sun was on System V and IBM needed to catch up, but, according to SCO, didn't want to pay SCO for it, hence the new charges. Supposedly SCO never knew any of this before it stumbled over it in IBM's discovery.

SCO has also finally decided to set up a site of its own to house all the myriad legal documents the suit has created so people won't have to go to Groklaw and read its anti-SCO philippics.

Meanwhile, on Wednesday District Court Judge Dale Kimball sat through three-and-a-half hours worth of oral arguments on four motions in the SCO-IBM case, the most substantive of which - as near as we can figure out - was IBM's eye-crossing cross-motion for partial summary judgment on its claim for a declaratory judgment of non-infringement.

At the risk of practicing law without a license - and with due reverence for Cravath, Swaine's abilities to move the ball even you're looking plum at it - this motion and its little friends look like one of those red herrings that may fetch IBM a lot of PR yardage, but may not ultimately score a touchdown.

IBM's premise started with asking the court to declare Linux free of any SCO copyright claims. Again near as we can figure out given all the easily misleading legal talk, Cravath, Swaine's boys, IBM's lawyers, modified their position at the hearing the other day and simply asked Judge Kimball to rule that the widgetry IBM contributed to Linux didn't infringe on any claimed SCO copyrights.

Well, now, Cravath, Swaine accomplished that maneuver quite nicely - with help from some stylistic faux pas by SCO's side - and will probably win that round for all we know - but darned if we can remember SCO ever charging IBM with that.

The only copyright charge we remember SCO making has to do with IBM continuing to distribute AIX after SCO claims it pulled its AIX license.

However, if IBM does win its motion, then it - or its factotums - will be able to claim victory and seek to reassure users to keep on buying Linux.

Anyway, Judge Kimball decided to give this and the other three motions he heard a think and postponed his decision. Then he took a stab at ending the discovery deadlock between IBM and SCO - having previously refused to discuss SCO's myriad complaints about IBM's refusing to turn over discovery - and told IBM to turn in its reply to SCO's latest motions trying to shake the CVMC source tree out of IBM by Wednesday, September 22 and told SCO to file its reply to whatever IBM has to say two days later, on September 24. After that, the ball will be in the judge's court.