SCO dodges bullet

Still a case of smoke 'em if you got 'em

SCO dodged a legal bullet, yesterday, as the judge overseeing its lawsuit against IBM refused the computer giant's request for a summary judgment. But it may only be a temporary reprieve, as District Judge Dale Kimball used his statement to launch a scathing attack on the merits of SCOs case against IBM.

IBM was seeking a ruling from the judge that its Linux distribution does not infringe SCO's claimed copyright. Judge Kimball said that it was tempting to grant the motion, because of the lack of evidence SCO had filed, but concluded that it would be premature. Then, the gloves came off:

"Despite the vast disparity between SCO's public accusations and its actual evidence - or complete lack thereof - and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment," Judge Kimball wrote.

"Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities."

Judge Kimball pointed out that SCO is not consistent in its own papers about the nature of IBM's alleged infringement.

SCO claims that it owns the copyright on sections of Unix source code, and that when IBM moved Unix technology to Linux, it infringed on those rights, and breached the terms of the contract between the two companies.

It initially said it would argue this in court, but in its main case, it asserts only that IBM continued to ship its version of Unix after the SCO licence had been revoked. Despite this, Kimball said, SCO has continued to refer to the broader copyright claims, something he described as "puzzling".

The outlook for SCO is not great. Although Kimball will hear its arguments, he had already told SCO that he doesn't find them persuasive. As John Ferrell, a specialist intellectual property lawyer at Carr & Ferrell, told CNET: "There's very little that can be more disastrous to your case than an angry federal judge." ®

Related stories

SCO parent sued by former execs
Hand over the code, judge tells IBM
SCO's vanishing licensing biz hits Q4 revenues
SCO hacked in apparent IP protest
SCO not sure pro-SCO site is a good idea

Sponsored: Network DDoS protection