SCO Wins a Round in IBM, Linux Saga

Magistrate Judge Brooke Wells of the U.S. District Court in Salt Lake City gave The SCO Group Inc. a rare victory in its ongoing battle with IBM over whether IBM placed SCO-copyrighted Unix code in Linux.

In her order, Judge Wells granted SCO's discovery motion, in which the Lindon, Utah, company had demanded that IBM turn over the source code of "all versions and changes" of IBM's AIX and Dynix Unix operating systems. This amounts to about two billion lines of code.

SCO had also asked for direct access to IBM's CMVC (Configuration Management Version Control) and RCS (Revision Controls System) to obtain this information, but Wells denied this request.

In addition, Wells ordered IBM to turn over the "programmer's notes, design documents, white papers, the comments and notes made by those who did the changes (to AIX and Dynix), the names and contact information of individuals who made changes and what changes they specifically made."

She, however, did not order IBM to produce the information for all 7,200 individuals who contributed to AIX and Dynix. Instead, she ordered the company to "provide the above required information for the 3000 individuals who made the most contributions and changes to the development of AIX and Dynix."

IBM had argued that SCO's discovery motions should be denied since SCO had not proven any of its claims after almost two years. Moreover, IBM has filed for partial summary judgment against SCO based on "two primary reasons."

SCO has said it has no intention of settling the case, despite mounting legal costs. Click here to read more.

For one, IBM claims that "the AT&T agreements upon which SCO's claims are based do not preclude IBM from using and disclosing source code that is written by IBM and does not include UNIX System V code (i.e. homegrown code)." IBM also says that "even if the AT&T agreements could be read to preclude the disclosure of homegrown code, any breach based upon such a reading has been waived by Novell, Inc."

Based on these claims, Wells reasoned, "it is clear that the contracts and their interpretations are central to the disputes in this case. In fact, the contract claims may have a more important role in the outcome of this case than the copyright claims."

However, Wells disagreed with IBM's interpretation of relevant code. "While the court agrees with IBM that this case concerns code that may have been improperly contributed to Linux, the court disagrees with IBM's narrow interpretation of relevant code. Under a plausible reading of the contract, it is possible that protections and prohibitions exist for code contributed by IBM to Linux. This code that eventually ended up in Linux may not look similar to the code initially provided to IBM under the contract, but if it was based on modifications, elements or derivations that are protected under the contract then it is clearly relevant. In contrast to IBM's argument this protection may even extend to 'homegrown' code depending on the interpretation of the contract," she wrote.

"Based upon the possibility of increased protection under the contract and the general principle that 'at the discovery stage, the concept of relevance should be construed very broadly,' the court finds that the burden of producing the code SCO seeks is outweighed by the relevancy of such code in the instant dispute," Wells wrote in her decision.

In short, the case will continue.

SCO has also sought to compel IBM to provide affidavits from IBM's board of directors, CEO Sam Palmisano and vice president Irving Wladawsky-Berger revealing all their documents pertaining to IBM's Linux strategy. Judge Wells elected to postpone a decision on this issue.

IBM has been ordered to produce the requested documents by March 18th. The court also ordered SCO and IBM to meet to discuss the trial's schedule. The case had tentatively been set to go to trial in the fall, but with this discovery motion granted, a new trial schedule will be necessary.

Pamela Jones, editor of Groklaw, an IT legal news site, called the order "annoying because she enables more delay, but other than that it is a pretty normal discovery order."

Jones, a SCO critic, said the order is basically meaningless from IBM's standpoint. "[W]hile this is annoying, it doesn't ultimately mean a thing," she wrote. "[B]y showing all the code and letting SCO look at it all from now to doomsday, if they never find any code that shouldn't have been donated to Linux, which is exactly what has happened so far, we get the matter settled once and for all. So let them look."

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