Legal bungling sank SCO Group’s investigation against DaimlerChrysler


Author: Chris Preimesberger

NewsForge has determined that The SCO Group, which purports to have ownership of all Unix System V code, was actually fishing for usage of its proprietary code in Linux systems when it filed a lawsuit March 3 against multinational automaker DaimlerChrysler. The lawsuit alleged only that DaimlerChrysler had not recertified with SCO Group the use of its old Unix code, as required by the original 1990 contract between Chrysler Motors Corp. (now DaimlerChrysler) and AT&T Information Systems (which owned the Unix code at that time).

In fact, DaimlerChrysler proved that it had complied with the original contract by certifying its use of Unix System V code with SCO Group 11 weeks (on April 6, 2004) before Michigan Judge Rae Lee Chabot’s dismissal of most of the case on July 21. DaimlerChrysler IT manager Norman Powell did this by attesting that no SCO-owned code had been used in DaimlerChrysler’s shop for more than seven years, thus there were no CPUs to be counted. (With thanks to Pam Jones at Groklaw, see DaimlerChrysler’s Motion for Summary Dismissal, dated April 15, 2004.)

DaimlerChrysler: Full compliance with agreement

“DaimlerChrysler has provided SCO with a certification that complies with the express requirements of Section 2.05 (of the original contract with AT&T Information systems),” the company said on Page 24 of its 54-page Motion for Summary Dismissal. “Specifically, the DaimlerChrysler letter provides SCO with the required information about Designated CPUs (explaining that none are in use); certifies that an authorized person reviewed DaimlerChrysler’s use; and states that no software product licensed under the subject agreement is being used or has been used in more than seven years, and as a result, there is full compliance with the provisions of the subject agreement,” DaimlerChrysler said.

SCO Group then accepted DaimlerChrysler’s certification response, company spokesman Blake Stowell told Newsforge. In effect, an out-of-court agreement was reached, although it was not made public. At this point, SCO Group could have dropped the litigation, but its counsel elected not to do so.

“We’re satisfied that DaimlerChrysler did finally certify their compliance with the existing software agreement,” SCO Stowell said.

Then why didn’t SCO Group drop the suit, after its customer (DaimlerChrysler) offered its explanation of compliance on April 6?

“One of the reasons our lawyers decided to pursue the case is that I think they wanted to investigate further whether DaimlerChrysler had any possible misuse of our code within Linux in their systems,” Stowell said on Monday.

However, the SCO lawyers’ plan backfired when Judge Chabot stuck to the letter of the contract, which dealt strictly with certification of Unix System V code usage. As it turned out, DaimlerChrysler “was not obligated to tell us anything about their use of Linux,” Stowell said.

More litigation to come?

Will SCO Group continue its investigation into whether DaimlerChrysler is somehow misusing proprietary Unix code in its Linux systems?

“I don’t know,” Stowell said. “I can’t answer that. It’s up to our lawyers.”

For this particular case, SCO Group retained the Southfield, Mich., firm of Seyburn, Kahn, Ginn, Bess and Serlin. A call to case lead attorney Joel Serlin Monday afternoon was not returned to NewsForge.

Detroit-based DaimlerChrysler spokeswoman Mary Gauthier, who did not return calls requesting comment today, told ComputerWorld on July 21 — the day of the judgment — that “we are pleased with the judge’s ruling, and we look forward to finally resolving the one open issue.”

Stowell said he does not believe SCO Group will pursue the final point in the Michigan case that is still open — that SCO Group wants to know why DaimlerChrysler didn’t respond to the certification request in a reasonable amount of time.

In fact, DC responded to SCO on April 6 — about a month after the lawsuit was filed — explained its legal point of view, and offered certification information. This information is all included in the motion filed on April 15. That meant DaimlerChrysler took about three and a half months to respond to SCO’s first letter on Dec. 18, 2003 requesting an accounting of its Unix System V code.