Big Blue Asks Court to Dismiss SCO’s Claims

Like many in the technology industry and legal community, IBM is wondering when the US$5 billion lawsuit the SCO Group has filed against it — for alleged breach of contract and the incorporation of SCO code in Linux — is going to end.

SCO, a Utah-based company that was once a major player in the Unix server market, sued IBM in 2003 claiming that the firm inappropriately ported SCO’s Unix code to Linux code before distributing it freely to developers.

Failed to Comply

Big Blue this week filed for summary judgement in the three-and-a-half-year-old case, arguing for dismissal of SCO’s claims on the basis that it has largely failed to back them up with evidence in court. Magistrate Judge Brooke Wells ruled in June that the firm had “willfully failed to comply” with court orders to show IBM which lines of computer code included in Linux had been misappropriated.

In reaction to IBM’s latest filing, SCO filed motions of its own to uphold its claims. No hearing has yet been set to review either of the firms’ recent filings, though a 2007 trial date has been set for the case itself that remains intact for now.

Legal and industry observers, however, believe the case may be all but finished for SCO, especially in light of Wells’ ruling a few months ago.

“The absence of evidence is the absence of evidence,” Townsend and Townsend partner and software legal expert Phil Albert told LinuxInsider. “With all of the evidence before the court, it’s clear IBM should win.”

Higher Profile

IBM’s summary judgement motion indicates the company remains confident it will ultimately prevail, said Albert. Most people he talks to, in fact, are surprised to hear that the case is still ongoing, he added.

“I don’t think anyone’s paying any attention to it anymore,” he said.

The bar is set rather high for summary judgement, but Albert said it was possible the court would decide to throw out the case, given SCO’s failure to produce evidence as requested.

SCO’s intellectual property lawsuits may have actually helped to usher in a greater acceptance of open source in the enterprise, Burton Group Vice President of Service Operations Gary Hein told LinuxInsider. The case has brought visibility to enterprise-level Linux deployment and helped clarify intellectual property issues related to open source code that may have mystified IT execs in the past.

The adoption of open source in the enterprise has gained higher visibility and been treated with a higher level of professionalism, Hein said. “It strengthened the position of open source in the enterprise. A lot of fear, uncertainty and doubt has been dismissed or adequately handled by enterprises.”

IBM’s motion for summary judgement comes as no surprise to Hein and echoes what most in the industry are saying.

“I think this is just validation of what many of us have believed for some time: stick a fork in it. It’s done,” he said.

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