The Ghost of SCO Dogs IBM Again
The news that lawyers for The SCO Group have filed a new motion to reopen its case against IBM was greeted with incredulity, to put it mildly. Turns out that the bankrupt SCO really isn't attempting to retry the case -- there are some loose ends from the long and drawn-out proceedings that still need to be tied up. The motion did provide an excuse for traveling once more down memory lane, though.
06/17/13 3:34 PM PT
Like Carrie, whose hand emerged from the grave to grab Sue by the ankle in Sue's nightmare, SCO has reemerged from its grave to revive its lawsuit against IBM, 10 years after the case was first filed.
The case had several twists and turns: The SCO Group sued former customers Autozone and DaimlerChrysler; Novell denied it had sold the Unix copyrights to SCO, triggering a lawsuit from SCO for slander; and both IBM and RedHat filed suits against SCO.
SCO had sought US$1 billion in damages from IBM.
"The reopening of the case is simply an administrative step to move along the process of getting rulings on some remaining issues. The move is uncontested," said Alison Preece, spokesperson for Boies Schiller & Flexner, counsel for The SCO Group.
"The party is the old SCO, currently in Chapter 7, under the direction of the bankruptcy trustee," she told LinuxInsider.
"What was never resolved was the extent of the actual IP SCO received from Novell," Bill Weinberg, senior director at Olliance Consulting, a division of Black Duck Software, told LinuxInsider. "It will be interesting to see how they will be able to clarify separation of the assets."
IBM "is likely wanting to appear fair," commented Raymond Van Dyke, principal at Van Dyke Law. "Assuming there is no new evidence to confer code ownership on SCO, IBM probably hopes to put a stake into the matter."
IBM did not respond to our request to comment for this story.
What SCO Now Wants
The latest motion was filed earlier this month by Boies Schiller & Flexner. Judge David Nuffer asked both parties to essentially assume he was not familiar with the case and provide him with sufficient detail in their briefs to reach a decision.
SCO must file a brief statement identifying the claims that it agrees have been shut out by the judgment in SCO v. Novell, where the court ruled that Novell did not transfer the copyrights for Unix to SCO back in 1995, according to Groklaw.
IBM can file a new motion for summary judgment on the remaining claims and counterclaims. Once this motion is decided, the court will set up a process and schedule for both parties to identify summary judgment motions filed previously that they still want Judge Nuffer to rule on.
Outstanding motions that were not officially decided before SCO filed for bankruptcy are a SCO motion for reconsideration pending, an objection to an earlier ruling, and a motion to supplement its list of materials it claims were misused by other companies. SCO also filed a motion for reconsideration of the court's ruling denying its claim that IBM was guilty of spoliation of evidence.
Who's SCO Now?
SCO, which had filed for bankruptcy in September 2007, filed a memorandum of understanding between it and Stephen Norris Capital Partners in 2008 under which SNCP would pay it up to $100 million subject to Bankruptcy Court confirmation, but that proposal eventually fell through. In June 2009, SCO announced an agreement with Gulf Capital Partners for funding to pay off its debts and continue its lawsuits through the sale of its Unix division. It's not clear what happened to that deal.
In 2011, UnXis purchased SCO's software product business, and SCO filed amendments to its certificates of incorporation and was renamed "TSG Group."
TSG Group remains in the shadows, but UnXis, which has renamed itself "Xinuos," claims on its website that it was created by SNCP and MerchantBridge Group in April 2011 to acquire all the operating assets and intellectual property rights of The SCO Group.
However, Xinuos "acquired certain IP rights and operating assets formerly owned by The SCO Group, pursuant to an order of the federal bankruptcy court in Delaware on April 11, 2011," Sean Snyder, Xinuos' president and COO, told LinuxInsider.
Xinuos "has no knowledge about [SCO's motion] nor does it have any interest whatsoever in such proceedings," he said.
What's Coming Up
IBM is likely to file a summary judgment motion on whatever SCO proffers as evidence of Unix code ownership, Van Dyke told LinuxInsider.
However, it's "very doubtful that [SCO has] any relevant new evidence or any evidence worthy enough to resurrect the case," Van Dyke said. "This is a blast from the past and SCO's case cannot last."