SCO, IBM Deserved Judge's Slap

By Wayne Rash  |  Posted 2005-02-10 Email Print this article Print
 
 
 
 
 
 
 

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Opinion: Citing lack of evidence, a U.S. court denies SCO motions against IBM; SCO should listen carefully.

In an unusual move, a federal judge has told both IBM and SCO to stop filing motions and to move ahead with their respective lawsuits and counterclaims. In addition, the judge in this case, Dale A. Kimball of the United States District Court for the District of Utah has said that he has doubts that SCO has any evidence to back up its claims so far.

In fact, the judge's references to SCO's motions to delay or dismiss IBM's counterclaims against it contain comments like "SCO's puzzling denial in its briefing that it has not alleged a claim against IBM for copyright infringement…" and, "It is incomprehensible that SCO seeks to postpone resolution of this claim…"

In addition, in response to what the court refers to as SCO's "plethora" of public statements and claims about the case, the judge says, "it is astonishing that SCO has not offered any competent evidence…"

IBM had subpoenas served on several large companies, including Target Corp., regarding their relationships with The SCO Group. Click here to read more.

Finally, while he denies IBM's motion to simply toss out SCO's case, the judge is clearly dubious of SCO's claims. He says, "Nevertheless, despite the vast disparity between SCO's public claims and its actual evidence—or complete lack thereof—and the resulting temptation to grant IBM's motion," and denies IBM's request.

The reason, presumably, is to make the decision when it does come, as appeal-proof as possible. The result is that the judge has either denied the motions of both sides or declared them moot.

What's telling is that the judge also took the unusual step of telling both sides that they had to stop with the motions until the discovery process is over. He even vacated his own action allowing dispositive motions last year. In other words, he's telling both sides to shut up and finish the discovery process.

By now you've probably figured out that this is a 20-page way of accomplishing what a parent does when he tells squabbling children to be quiet or go to their rooms.

However, the judge did not simply shut everything down permanently. He did give IBM permission to refile its motions after the discovery process is complete, or to file new motions if the company prefers.

While the judge is clearly annoyed by the delaying tactics on both side of this case, it's also clear that he has been less than favorably impressed by SCO. His comments about the company's claims in this case are strongly worded, and in some sense, almost sarcastic. It's pretty clear that SCO is already treading on very thin ice in this case and needs to come up with something compelling.

In short, this is probably good news for the Linux community. It seems clear at this point that despite all of the hype, SCO is missing one of those things that helps when you're suing someone, and that's evidence. It also seems clear that SCO, at least in the current set of motions, is having trouble deciding where it's going with this.

Still, it's much too early to celebrate. It's possible that once the discovery process is complete, SCO might find something. Heck, they might call Grissom and the CSI gang in from neighboring Nevada to search for the missing evidence. But right now, it seems unlikely.

Instead, SCO seems destined to go down the same path as other companies in this industry, Ashton-Tate for example, that thought they could base their business on lawsuits rather than innovation and excellent products. You do remember Ashton-Tate, don't you? No? That should tell you something.

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Wayne Rash Wayne Rash is a Senior Analyst for eWEEK Labs and runs the magazine's Washington Bureau. Prior to joining eWEEK as a Senior Writer on wireless technology, he was a Senior Contributing Editor and previously a Senior Analyst in the InfoWorld Test Center. He was also a reviewer for Federal Computer Week and Information Security Magazine. Previously, he ran the reviews and events departments at CMP's InternetWeek.

He is a retired naval officer, a former principal at American Management Systems and a long-time columnist for Byte Magazine. He is a regular contributor to Plane & Pilot Magazine and The Washington Post.
 
 
 
 
 
























 
 
 
 
 
 

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