Judge Kimball rules at last [LWN.net]

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 an update.

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 Linux activities.

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 is complete.

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 denied.

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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