SCO resists calls for summary judgment

The SCO Group has submitted written arguments explaining why a Utah judge should not issue a summary judgment dismissing its...

The SCO Group has submitted written arguments explaining why a Utah judge should not issue a summary judgment dismissing its multibillion-dollar lawsuit against IBM.

SCO claims IBM has mischaracterised SCO's lawsuit against the computer giant and failed to provide relevant information during the discovery portion of the case. A summary judgment would be premature, because SCO had acted in good faith and had not yet had the opportunity to make full discovery, it alleged.

IBM has been seeking a summary judgement in the case, which could effectively put an end to the matter according to legal experts. IBM has also asked the court for a declaratory judgment on the question of whether it had violated SCO's copyright, which would prevent new copyright claims from being brought against IBM at a later date.

Although SCO has asserted that Linux contains code copied line for line from its Unix System V source code, the latest moves suggest that SCO does not believe IBM was responsible for these alleged violations.

"SCO has not alleged any copyright violation based on IBM's contributions to Linux," its court documents stated. The only copyright claim SCO has brought against IBM has to do with the AIX and Dynix operating systems, which IBM continued to distribute after SCO "terminated" IBM's Unix licences last year, SCO claimed.

IBM has criticised SCO in past court documents, claiming that it has failed to provide evidence of any copyright infringement by IBM.

"No matter how many times IBM mischaracterises it, this case is not about literal copying of Unix source code into Linux," SCO wrote. "Instead, SCO has claimed from the very outset that IBM's contribution to Linux of the 'resulting materials' it created as modifications to or derivative works based on Unix System V... constitutes a breach of IBM's licensing agreements."

Because SCO's public statements about alleged copyright infringement in Linux have been stronger than those in its court filings, the question of whether the case is simply a contract dispute between the two companies or a copyright issue - which could create greater liabilities for users - has been obscured, said Jonathan Eunice, an analyst with industry research firm Illuminata.

"If you talked to [SCO's] lawyers, they treated the copyright case as more of an indication than the real case they wanted to bring. I believe that they want to broaden out the case [to include more copyright claims]," he said.

Robert McMillan writes for IDG News Services

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