April 19, 2004

SCO Group, IBM exchange new evidence during 'discovery'

Author: Chris Preimesberger

SECOND UPDATE Legal representatives of the SCO Group and IBM were in contact with each other Monday to present new evidence to support their cases in the $5 billion intellectual property lawsuit SCO Group filed against Big Blue on March 6, 2003.

"SCO Group (lawyers) did connect with representatives of IBM today and exchanged what information they were directed to exchange," SCO Group spokesman Marc Modersitzki told NewsForge.

Modersitzki said he did not know if the company attorneys met in person, in audio or video conference, or simply transferred the evidence electronically. "All I know is that they made connection, as directed by the court, and exchanged the information requested by the court," he told NewsForge.

During the "discovery" phase of the trial, the plaintiff and defendant are not required to show the court this evidence. Rather, they were directed to discuss among themselves the evidence and come to an agreement as to its veracity. If either party is not satisfied with the new evidence presented, then a court hearing may be called.

In a related matter, both the plaintiff and defendant asked for more time to get their responses to each other's claims together. The request was granted by the case judge, Dale A. Kimball, on Thursday. Groklaw, a popular IT law and IP information site, published a copy of the court order on Saturday.

As a result of the court order, SCO group will now have until Friday, April 23, to respond to IBM's counterclaims about alleged copyright infringements. IBM will have until Friday, April 30, to respond to SCO's April 23 presentation.

Because it claims the copyright to the Unix System V operating system, SCO Group contends it also holds copyrights on portions of IBM's AIX and Dynix software that made its way into newer Linux distributions.

On March 3, Judge Brooke C. Wells wrote in a nine-page ruling that SCO had not produced enough proof to back up its allegations that IBM moved proprietary Unix software to new Linux systems. Wells gave SCO Group and IBM 45 days -- or until April 17 -- to present more proof.

The March 3 ruling included these key statements:

  • SCO is to provide and identify all specific lines of code IBM is alleged to have contributed to Linux from either AIX or Dynix. This is to include all lines of code that SCO can identify at this time.
  • SCO is to provide and identify all specific lines of code from Unix System V from which IBM's contributions from AIX or Dynix are alleged to be derived.
  • SCO is to provide and identify with specificity all lines of code in Linux that it claims rights to.
  • SCO is to provide and identify with specificity the lines of code that SCO distributed to other parties. This is to include where applicable the conditions of release, to whom the code was released, and the date and under what circumstances such code was released.
  • IBM is to "provide the releases of AIX and Dynix, consisting of 'about 232 products,'" and SCO is then required to "provide additional memoranda to the court indicating if and how these files support its position and how they are relevant."

A U.S. District Court judge in Delaware last week refused SCO Group's motion to dismiss Red Hat Inc.'s nine-month-old countersuit against it, ruling the case suspended pending the outcome of the IBM case.

SCO Group also has IP lawsuits in various stages of process against Novell, AutoZone, and DaimlerChrysler.

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