IBM's patience runs out on SCO

Posted on 5 Nov 2003 at 16:56

IBM has filed a request to push through a Motion to Compel Discovery in order to get hold of the specific 'misappropriated' code it claims SCO is with-holding.

The memorandum comes on the heels of a Hallowe'en conference between the two sides, where the administrative Judge handling the case ruled a final meeting would be held 21 November, to resolve the issue. After this, the discovery request would go to oral argument on 5 December if SCO still hadn't satisfied IBM's requests for SCO material that it needs to compile its defence. It is unlikely SCO would be allowed any further delay, should such an eventuality arise.

IBM, understandably, wants this eventuality to turn up sooner, if possible, and the memorandum filed 3 November requests the court issue an Order to compel SCO to deliver the documentation it has asked for.

'Either SCO has evidence to support its accusations or it does not. If it does, IBM is entitled to see it now; if it does not, IBM will be entitled to dismissal of this case,' it reads.

IBM claims that SCO's responses to its requests have been inadequate, although SCO has said it has done enough as far as it is concerned, and that IBM's case for a motion to compel it to respond more thoroughly is moot.

It is not according to IBM. Instead, it argues that SCO's response has failed 'to identify a single allegedly-misappropriated Unix file or line of code', despite IBM's request for it to 'identify with specificity (by product, file and lines of code... ) all of the alleged trade secrets and any confidential or proprietary information that [SCO] alleges IBM misappropriated or misused'.

Instead, says IBM, SCO has merely outlined sections of code and described Unix methods that it claims may include 'information... that IBM was required to maintain as confidential or proprietary'. IBM cites past cases, however, where this has proved unsatisfactory in identifying trade secrets.

The nearest SCO has come to showing its misappropriated hand was at its SCOforum2003 show in the Summer. The company showed off two instances where lines of code in its Unix System V had been 'misappropriated' into Linux, along with an email and IBM copyright notice that it offered as further support for its allegations.

SCO obfuscated some of the System V code it presented by using a Greek font. However, Linux advocate Bruce Perens worked it back again. He claims that the first block of code is part of an Internet firewall software package that 'was first deployed on the 4.3 BSD system produced by the University of California at Berkeley. SCO later copied the software into Unix System V... since SCO doesn't own the code, they have no right to prevent others from using it'.

The second example from SCO, Perens claims, was released as Open Source by Caldera (now known as SCO) under the BSD licence in 2002. Prior to that, AT&T had lost its copyright to the code in a case during the early 1990s.

Perens says the Open Source version and that used by SCO differ in two lines of diagnostic code of which the difference is so 'trivial', it 'doesn't appear to be copyrightable'.

SCO would argue that Open Source licences aren't enforceable - it made a vehement attack on the GNU General Public Licence in its response to IBM's countersuit. But Perens told us: 'The court cases will never get to the GPL. They will end when SCO is unable to show that their contract terms give them rights over the work of IBM, etc. So, the GPL stuff is really a red herring.'