Judge kills off SCO claims

By Matt Whipp

Posted on 30 Jun 2006 at 17:55

SCO has had the lion's share of the examples it put forward as evidence of the 'misappropriation' by IBM ripped from its case.

Judge Brooke Wells issued an order granting an IBM motion to dismiss SCO's claims due to lack of specificity: from a list of nearly 200 claims contested by IBM, just 10 remain - essentially removing two-thirds of SCO's contention.

Aside from lack of specificity as to what exactly the code in question is, the straw that broke the Judge's patience is that SCO required far greater levels of specificity from IBM when requesting materials for evidence throughout the discovery period: a level of exactitude to which it was unable, or unwilling, to rise itself.

'It is also apparent that SCO in some instances failed to meet the level of specificity it required of IBM. Further, this failure was willful under case law and prejudicial to IBM,' she wrote in her Order.

The crux of the matter is that you can't refuse to tell someone that they have stolen something yet refuse to tell them what it is they have stolen.

Wells makes the following analogy: '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 'its in there somewhere, you figure it out.'

SCO's case against IBM runs to some $5bn, although a good deal of that relates to IBM's continued business with its AIX Unix platform, despite SCO withdrawing its license. Even so Novell is also in court with SCO in a case that contests various rights to the ownership of the Unix platform.