In the 100-page document (Groklaw has a copy here), IBM reports that as recently as Aug. 4, 2004, SCO was still offering the Linux 2.4 kernel for download, the very code over which the Lindon, Utah-based company is suing IBM.
Naturally, if it is proven that SCO Group has been releasing under the GPL the code which it claims to be proprietary, its case will be severely damaged. SCO originally claimed that it didn't know that Unix code was in Linux, so that exempted it from the GPL's distribution terms.
As the result of this, IBM contends in its motion that it should be able to do whatever it wants with its own code. IBM said that both AT&T (which owned the System V code at the time the IBM contract was signed) and IBM have now provided "unequivocal testimony that the agreements were not intended and should not be understood to preclude IBM's use and disclosure of homegrown code and contemporaneous documents reflect this interpretation of the licenses."
SCO reacted predictably to the IBM action Tuesday.
"SCO disagrees with IBM's interpretation of their contractual obligations regarding derivative works," SCO Group spokesman Blake Stowell told NewsForge.
"The SCO Group is the sole owner of the AT&T UNIX System V software licensing agreements, including the software agreement that IBM entered into when they licensed UNIX System V in order to create their derivative work known as AIX. We allege that IBM, through its contributions of AIX into Linux, is in breach of this software agreement. According to IBM's interpretation from their most recent filing, the 1985 UNIX software agreement would provide less intellectual property protection than if no contract had been written at all. We look forward to proving our case in a court of law in the near future."
Groklaw has a detailed analysis of the summary judgment request. It could take the judge 30 days or more to return a decision on the motion, which would result in either the request being denied or the case itself being thrown out of court.