SCO v. IBM has been absent from the LWN front page for some time - and
there has been a striking lack of letters from readers protesting that.
An important ruling has been issued, however, and so it's time for
IBM's tenth counterclaim ("CC10") in this case requests a ruling from the court that
IBM's Linux activities do not violate any of SCO's copyrights. IBM filed a
motion requesting a summary judgment on this counterclaim, stating that
there were no disputed facts that might argue against that judgment. A
victory on this motion would take much of the wind from SCO's sails.
The SCO Group knows this, and so filed a motion of its own requesting that
the tenth counterclaim be dismissed, or at least stayed.
These motions were argued before Judge Kimball back in September. The
ruling was long in coming, but it is now available (in PDF
format). The ruling is not a clear victory for either side, but it
suggests that SCO is facing a rough road unless it turns up something truly
incriminating in the discovery process.
The first order of business was SCO's motion to dismiss or stay CC10. The
Judge notes that SCO's arguments have shifted over time, ending up with the
statement that CC10 is moot because SCO is not actually alleging copyright
infringements on IBM's part. The Judge didn't buy it:
Notwithstanding SCO's puzzling denial in its briefing that it has
not alleged a claim against IBM for copyright infringement arising
out of its use, reproduction, or improvement of Linux, it clearly
has alleged such a claim.
The Judge makes note of SCO's public statements on the matter, and the
AutoZone suit as well. In conclusion:
The court assumes that SCO was prepared to prosecute its claim in
the AutoZone case or it would not have filed suit. Indeed,
in light of SCO's lawsuit against AutoZone and SCO's public
statements during the last two years, which have essentially
invited this claim, it is incomprehensible that SCO seeks to
postpone resolution of this claim.
The motion was denied flat out, with prejudice. In other words, SCO
will have to face this counterclaim, which is clearly a problem of
its own making.
The Judge then moved on to IBM's request for a summary judgment, which
would have resolved CC10 (in IBM's favor) immediately. Judge Kimball
reviewed a number of SCO's more blatant public statements, along with IBM's
claim that no evidence to back up those statements has been presented. The
Judge clearly sees some merit in IBM's arguments, but is not willing to
grant the judgment at this time:
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
Nevertheless, despite the vast disparity between SCO's public
accusations and its actual evidence-or complete lack thereof-and
the resulting temptation to grant IBM's motion, the court has
determined that it would be premature to grant summary judgment on
IBM's Tenth Counterclaim.
The Judge reasons that SCO's contract claims could play into the final
determination of the copyright issues, and that ongoing discovery could yet
yield the evidence that SCO seeks. The ruling, in passing, notes that
Judge Kimball is "in general agreement" with the discovery order forcing
IBM to provide all of its Unix/Dynix code to SCO. The Judge also states:
Simply put, regardless of the merits, the granting of summary
judgment would be very unlikely to survive an appeal when a Rule
56(f) motion has been filed and a motion to compel production of
arguably relevant information remains pending.
Judges hate being reversed on appeal, for obvious reasons. So Judge
Kimball is, as he should, playing the game in such a way as to come to
conclusions which will stand. So the court declined to rule in favor of
IBM's motion now, but states that the motion can be refiled after discovery
IBM had also argued that the summary judgment on CC10 should be granted as
a sanction for SCO's misbehavior in the case. Judge Kimball didn't buy it,
though, and rejected that motion out of hand.
Then, IBM had filed a motion trying to strike a number of declarations
filed by SCO. These declarations, by Sandeep Gupta, Chris Sontag, and John
Harrop, were said (by IBM) to be inadmissible because the people who wrote
them didn't know what they were talking about. The Judge accepted SCO's
argument, though, that the real purpose of the declarations was to argue
that more discovery was needed; he then said, however, that he made no use
of the declarations in any case. So this motion, moot to begin with, was
IBM has two other summary judgment motions on the table. One seeks to
dispose of SCO's contract claims, while the other seeks a ruling on IBM's
eighth counterclaim - the GPL violation claim. The filings on these
motions are not complete, and arguments have not taken place. Judge
Kimball has denied them (without prejudice) anyway, stating that they
cannot be resolved until discovery is complete. In fact, no such motions
can be resolved, so there is now a ban on any further dispositive motions
during the discovery period.
What all this seems to mean is that there will be no shortcuts in this
case. SCO does not get to squirm out of CC10, but neither does IBM get a
quick resolution to its claims. SCO, it seems, will be able to conduct its
fishing expedition through IBM's source repositories, though there may yet
be more arguments on that point. Your editor, attempting to read between
the lines of the ruling, senses a fair amount of hostility to SCO's claims
and tactics. But, regardless of how the Judge sees the case now, he seems
determined not to make any premature or careless decisions. This case will
have to play out according to the calendar - at least, until the discovery
phase is over.
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