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SCO cannot back up copyright claims, say IBM

IBM has filed documents in its legal dispute with Unix supplier SCO accusing it of having no evidence to back up its copyright infringement claims, and has asked the judge to throw a major component of the case out of court.

"For more than a year, SCO has made far-reaching claims about its right to preclude IBM's [and everyone else's] Linux activities," wrote IBM in documents filed to a US court.

"Despite SCO's grandiose descriptions of its alleged evidence of IBM's infringement, SCO now effectively concedes that it has none."

SCO has been unable to provide any evidence of copyright infringement during the discovery phase of the trial and the court should, therefore, render a summary judgment against SCO, IBM's filings said.

In March 2003, SCO filed a multibillion-dollar lawsuit against IBM, accusing it of violating SCO's Unix intellectual property.

SCO accused IBM of unfair competition, breach of contract and of violating SCO's trade secrets. In late February, it dropped the trade secret allegations in the case, but added a claim that IBM had violated SCO's Unix copyright.

A few weeks after the trade secret claims were dropped, IBM sought a declaratory judgment in the case, a move that opened the possibility of a quick ruling against SCO. Lawyers following the dispute saw this as a sign of growing confidence on IBM's part.

By seeking a declaratory judgment, IBM was showing that it had not found any evidence to back up SCO's claims, said Jeff Norman, an intellectual property partner with law firm Kirkland Ellis.

Because the copyright claims form the crux of SCO's case, this week's filing for a summary judgment creates the possibility that the dispute could be over in a matter of months, he said.

This week's filings could also force SCO to provide more compelling evidence of copyright violations, said David Byer, a partner with the patent and intellectual property group at Hurwitz & Thibeault.

"It is another way to try to focus the court on the evidentiary questions that have been battled about since day one, meaning who is going to produce what when," he said. "SCO needs to respond to this. If they don't respond appropriately, the case can get thrown out."

SCO is likely to produce more evidence to support its claims, said Blake Stowell, an SCO spokesman. On 19 April, IBM turned over 232 versions of its AIX and Dynix Unix source code as well as internal documents and memos from executives, he said.

Complicating matters for SCO is the fact that Linux supplier Novell also claimed to own copyright to the Unix source code. SCO has sued Novell for slander in connection with this claim.

Robert McMillan writes for IDG News Service


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