Evidence Deadline Approaches for SCO Versus IBM

After two and a half years and hundreds of legal filings, the open source community should finally get what it has been waiting for this Friday, when SCO Group is scheduled to present its evidence against IBM.

In July, US District Judge Dale Kimball set both companies an interim deadline of October 28 to submit their evidence in the long running contract and copyright infringement case, with a final deadline of December 22.

Lindon, Utah-based SCO first sued IBM in March 2003 claiming IBM breached a contract by contributing Unix code to the Linux open source operating system, while also making public statements that Linux contained SCO copyright code.

Both IBM and the Linux community at large have denied any wrongdoing, and there have been numerous calls from the open source community for SCO to identify the code in question so that Linux developers could remove it from the operating system if it was found to infringe on SCO’s copyright.

Despite repeated public declarations that it has evidence Linux contains SCO copyright code, the company has yet to present any evidence to the court, leading to Judge Kimball to state in February that: "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.

SCO’s chief executive officer, Darl McBride, has stated many times that the company was looking forward to having its day in court. That day is fast approaching, and while the two-stage process of submitting evidence might mean that December 22 is the key date to watch out for, Judge Kimball’s July order also made it clear that October 28 was the day to "disclose with specificity all allegedly misused material identified to date.

The last time SCO presented evidence designed to back up its claims that more than 1.1 million lines of code from 1,549 files of derivative works had been donated to Linux by Unix licensees, the open source community quickly responded to shoot down its claims, and Friday’s deadline will no doubt have open source advocates on tenterhooks.

At its Forum event in 2003, SCO showed interested parties some of the code it said had been copied line by line from Unix into Linux. Unfortunately for SCO, open source advocate Bruce Perens almost immediately identified the code with the help of other members of the Linux community. According to Perens, the code presented had twice been published under a BSD license in the past, first by AT&T and then by SCO in its former incarnation of Caldera.

The interim deadline also applies to IBM’s counterclaims against SCO, which were reduced following its recent offer to drop patent infringement claims in order to expedite the legal process.

IBM’s eleven remaining claims against SCO include breach of contract, unfair competition, unfair and deceptive trade practices, breach of the GNU General Public License, interference with prospective economic relations, and violation of the Lanham Act.

SCO has twice changed its legal case against IBM but its claims include two cases each of breach of software agreement and breach of sublicensing agreement, copyright infringement, unfair competition, interference with contract, and interference with business relationship.

As well as the contract dispute with IBM, SCO is also embroiled in an ongoing legal case with Novell Inc over the ownership of the Unix copyrights, while Linux distributor Red Hat Inc sued SCO in an attempt to get a declaratory judgment that its business does not infringe SCO’s copyright.

SCO also sued AutoZone in March 2004 claiming that the retailer infringed SCO copyright as part of a migration from SCO OpenServer to Linux. The case was put on hold in August 2004 until SCO’s ongoing legal disputes with IBM, Novell, and Red Hat, have been resolved.

Meanwhile its case against car giant DaimlerChrylser for allegedly running uncertified copies of the Unix operating system was thrown out of court in July 2004 after said DaimlerChrylser it hadn’t used SCO’s software for seven years.

The December 22 final deadline for evidence will give both SCO and IBM an opportunity to update their evidence based on any newly uncovered evidence before the close of fact discovery on January 27, 2006, and any other discovery matters on March 17, 2006.

That will be followed by a series of expert reports, and dispositive motions, before a special attorney conference and settlement conference on January 30, 2007. The five-week jury trial is scheduled to begin on February 26, 2007.

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