SCO: the end gets closer [LWN.net]

Your editor misses the Good Old Days, when outlandish SCO court filings were a daily occurrence, Darl McBride's fulminations were daily press fodder, and the occasional corporate teleconference could be counted upon to keep blood pressures high in the community. One could almost get nostalgic about plowing through yet another blurry PDF file filled with bizarre legalese. The world feels a little lonely now that Chris Sontag no longer shows his face in public.

Actually, the above paragraph is a bunch of hot air; LWN is more fun without the SCO Group on the front page. But a certain morbid interest suggests that the SCO end game should occasionally be chronicled as important milestones unfold. One of those milestones was passed on June 28, when Judge Wells issued an order in SCO v. IBM. For those of us who have been patiently (or, perhaps, not so patiently) waiting for SCO to feel the consequences of its lack of discretion in public and its lack of any actual evidence of wrongdoing, the time has finally come.

The SCO Group, remember, has been under court order for some time to disclose "with specificity" exactly what it thinks IBM did wrong. SCO's final answer took the form of 294 "specifics," described in a sealed filing. IBM responded with a motion saying that most of SCO's claims lacked the required level of specificity and should simply be thrown out, regardless of whether they might have any merit or not. Judge Wells's order was the court's response to this motion.

After reviewing (at length) SCO's history in the case, Judge Wells concluded that SCO's claims were, indeed, not specific enough. Not enough for the court, but also not up to the level that SCO expected from IBM. Thus:

Given SCO's track record in this case, the court is certain that if IBM had simply provided line information without version and file information for "methods," SCO would have filed motions to compel complaining about IBM's lack of specificity. The court cannot find any reason why SCO should not be held to the same level of accountability that SCO held IBM to. Thus, SCO should have supplied not only line but version and file information for whatever claims form the basis of SCO's case against IBM.

Failure to meet the specificity requirement is not enough to throw the claims out, however; a couple of other criteria must be met. One is that the failure was willful - that SCO deliberately failed to disclose that information. According to Judge Wells, that is, indeed, the case:

There is no evidence before the court to indicate that SCO lacked the ability to comply with the court's orders. In fact, given SCO's own public statements outlined in part supra, it would appear that SCO had more than enough evidence to comply with the court's orders....

Based on the foregoing, the court finds that SCO has had ample opportunity to articulate, identify and substantiate its claims against SCO. The court further finds that such failure was intentional and therefore willful based on SCO's disregard of the court's orders and failure to seek clarification. In the view of the court it is almost like SCO sought to hide its case until the ninth inning in hopes of gaining an unfair advantage despite being repeatedly told to put "all evidence . . . on the table."

One might well argue that this is a charitable view of SCO's behavior. But it makes one thing clear: the court has noticed the discrepancy between SCO's public bluster and the evidence it has actually put forward in the trial.

Finally, IBM had to show that it was being hurt by SCO's failure. The court had no trouble buying IBM's argument that it would be hard put to defend a case where it is unaware of what it has done wrong. The troubles go beyond that, though:

Without more specificity than SCO has provided some very important questions that could materially impact this case are nearly impossible to answer. For example, is the code that comprised the method or concept still in use in Linux? If not, then damages may become nominal instead of in the billions. Or, it may be possible that the code comprising a method or concept was already disclosed pursuant to some other license such as the BSD License.... Without the code, however, there is no way to ascertain exactly what the impact is of prior disclosures that may involve the code at issue in the instant case.

The end result is that IBM won big: 182 of SCO's claims have been summarily tossed out - just ten short of what IBM had asked for. On the order of 100 claims remain. This ruling is clearly a major blow to SCO's case, but just how major is hard to say: since SCO's claims remain under seal, we cannot know which ones have survived. But it is clearly a much shorter list, with much of the "methods and concepts" vapor removed. And, just as importantly, the court appears to have concluded that SCO has been given plenty of rope at this point; with luck, this whole episode might just reach a conclusion sometime soon.

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SCO: the end gets closer

Posted Jul 6, 2006 23:12 UTC (Thu) by jre (guest, #2807) [Link]

Re: "SCO has had ample opportunity to articulate, identify and substantiate its claims against SCO.", the error is in the original.

As I followed this case, I discovered that my capacity for sustained outrage was limited. After a while, SCO's antics came to seem more tiresome than infuriating. So it is with some sympathy that I read Judge Kimball, quoted by Judge Wells, dropping this gem:

Nevertheless, despite the vast disparity between SCOs public accusations and its actual evidence-or complete lack thereof-and the resulting temptation to grant IBMs motion, the court has determined that it would be premature to grant summary judgement . . . .

You've got to salute a professional who resolutely does the right thing even after clown fatigue has long since set in.

Better you than me, Your Honor, better you than me.