Analysts puzzled by SCO and IBM subpoenas

Industry analysts were left scratching their heads as they tried to understand the reasoning behind 10 subpoenas sent out by IBM...

Industry analysts were left scratching their heads as they tried to understand the reasoning behind 10 subpoenas sent out by IBM and The SCO Group as part of their legal dispute.

The subpoenas were sent to a variety of individuals and companies including Linux creator Linus Torvalds, SCO investor BayStar Capital, and Novell.

IBM's subpoenas were sent out 30 October to investment companies BayStar Capital, Renaissance Ventures and Deutsche Bank. The company also subpoenaed industry analyst company Yankee Group, whose senior analyst Laura DiDio had earlier examined the Unix System V source code which, SCO claims, was illegally copied into Linux.

SCO has sent out subpoenas to Linus Torvalds, Open Source Development Labs chief executive officer Stuart Cohen, Transmeta vice president, general counsel and secretary John Horsley and GNU founder Richard Stallman, as well as Novell and Digeo.

But analysts and observers said it was unclear how those subpoenaed could advance the two claims that form the crux of the SCO-IBM lawsuit, in which SCO alleges that IBM sought to destroy the market for Unix on Intel by inappropriately contributing code to Linux.

"Linus [Torvalds] is the only one who seems worth subpoenaing," said Bill Claybrook, a research director with Aberdeen Group, who has also examined SCO's source code. "The rest of them don't have any information that would lead a judge to determine whether code had been copied."

"The list that I read seemed nonsensical to me," said IDC analyst Dan Kusnetzky, speaking of SCO's list of subpoena targets. "The SCO Group has been playing this as a media event."

If SCO or IBM wanted to determine whether or not code had been copied, they would do better to subpoena Linux kernel developers who would be in a position to comment on contributions to the Linux source.

"If I were a judge and IBM and SCO came to me with that list of people, I'd probably throw the whole thing out, because this whole list is nonsense," Claybrook said. 

IBM had no comment on the motivation behind its subpoenas, offering only a prepared statement, which read, "It is time for SCO to produce something meaningful.  They have been dragging their feet and it is not clear there is any incentive for SCO to try this in court."

SCO spokesman Blake Stowell suggested that IBM's subpoenas were served to intimidate analysts from speaking in favour of SCO. BayStar Capital was targeted because the company recently invested $50m in SCO, and DiDio was targeted for public comments that "leaned more toward SCO", Stowell suggested.

Stowell denied SCO's subpoenas were issued in response to IBM's, saying all the subpoenas were served at the same time. They were issued to people who had dealings with Torvalds and who would be in a position to comment on the creation of Linux, he said.

Open Source Initiative president Eric Raymond disagreed. SCO's subpoenas were issued to distract the court and reduce the possibility that SCO's case will be thrown out of court during a hearing taking place on 5 December on an IBM motion asking the court to compel SCO to present evidence.

"They're just stirring up mud," Raymond said. "There's a substantial possibility that the judge might quash this case because SCO has failed to respond to IBM's discovery request."

Robert McMillan writes for IDG News Service

Read more on IT legislation and regulation