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IBM says SCO contract claims are an 'illusion'

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IBM last week stepped up its attack against SCO by filing a motion to dismiss SCO's contract claims with the US District Court in Salt Lake City, Utah.

The 100 page document aims right at SCO's claims around the control of "derivative works" produced off of the Unix System V code base. SCO has long asserted that IBM did not have the right to make additions to Unix and then chuck them into Linux source code. In its filing, IBM says this line of thinking is absurd given its old Unix contracts with AT&T and given SCO's decision to ship its own version of Linux.

"Although SCO for months perpetuated the illusion that is had evidence that IBM took confidential source code from Unix System V and 'dumped' it into Linux, it has become clear that SCO has no such evidence," IBM says in the court filing. "Instead, SCO's claims that IBM breached its agreements with AT&T depend entirely on the allegation that IBM improperly contributed certain of IBM's original source code, contained in its own AIX and Dynix operating systems . . . to Linux."

IBM goes on to argue that old agreements with AT&T and expert witnesses make it clear that IBM was allowed to do what it liked with "derivative works." It would have been bad business for IBM to agree to broad terms banning it from controlling "derivative works," it says.

"Second, even if the AT&T agreements could be read to preclude the disclosure of homegrown code - and they cannot be - any breach based upon such a reading has been waived by Novell on behalf of SCO, and by SCO itself," IBM says in the filing, referring to the time in which Novell owned the rights to Unix before SCO.

IBM also claims that SCO "has waived any right to claim IBM acted improperly by contributing its code to Linux" by making a version of Linux based on the 2.4 kernel available to its customers. It's no secret that SCO had Linux up for download well after it filed suit against IBM. Big Blue, in fact, argues that SCO still had the code up as recently as two weeks ago.

SCO has been having a bad run of late in its battle against Linux. The company's CEO has been less aggressive about pursuing legal action against Linux customers after losing most of its case against DaimlerChrysler. SCO has also temporarily backed off its SCOsource licensing campaign, saying this isn't a huge near-term priority. Add to all this the massive legal costs being faced by the company, and it's not the prettiest of pictures.

As usual, Groklaw has a solid discussion of the most recent filing (and a copy of the document) going on. ®

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