SCO’s Future Murky Following Legal Blow

A district court judge has dismissed the majority of the claims the SCO Group filed against IBM in 2003, which purported that IBM had committed copyright infringement by contributing Unix code to the Linux operating system.

Last year, IBM asked the court to limit the scope of SCO’s claims on the grounds that SCO had not provided enough information on the specific code involved.

In a ruling filed this week, Judge Brooke Wells agreed with Big Blue, dismissing two-thirds of the nearly 300 claims SCO entered against IBM.

Fishing Expedition?

SCO insisted it should not have to provide detailed information about the code IBM supposedly inserted in the Linux OS, but that argument didn’t wash. The judge implied SCO’s tactics were no more than an evidentiary fishing expedition.

“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,'” Wells wrote.

“SCO’s arguments are akin to SCO telling IBM, ‘Sorry, we are not going to tell you what you did wrong because you already know.'”

SCO’s many public statements did not help its position with the judge, said Jeffrey J. Toney, a partner withSutherland Asbill & Brennan in Atlanta.

“It can be very complicated to prove copyright infringement in a software case,” he told LinuxInsider. With millions of lines of code to examine, it can take an extensive amount of time to compare the two versions to find instances of infringement.

However, SCO had repeatedly told the press that it had found such violations, Toney pointed out. “Reading between the lines, the judge was basically saying to SCO, ‘If you make these claims publicly, I am going to hold you to that standard.'”

SCO has said its lawyers are reviewing the decision and will decide how to proceed.

Whither SCO?

A suit that at one time had the Linux user community seriously rattled, SCO’s fight against IBM appears to be all but dead.

It is unclear how SCO will continue to fund its legal battles: Its cash reserves are disappearing at a rapid pace, while its losses have accelerated over the last year, in large part due to its legal expenses. Wells’ decision, if not a death knell, is a major blow to its prospects.

On the other hand, if SCO does decide to go forward, it could still prevail in court, Toney said. Wells let stand at least one-third of SCO’s claims, many of which are sealed because they reference proprietary data.

“It only takes one single assertion of copyright infringement to stop dissemination,” he remarked.

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