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June 30, 2006

SCO Severely Sanctioned in IBM Infringement Case

While we're on the subject of lawsuits, baseless or otherwise, SCO had part of its claims against IBM knocked out by a federal magistrate.  What's worse for SCO is that the action came through sanctions for failing to give IBM, with some specificity, the evidence it had indicating IBM had violated its copyright in Unix with code in IBM's AIX and Linux-based operating systems.  SCO has been notorious in not providing detailed evidence over the length of the suit.  The judge had been very explicit about the need for disclosure, and called some of the failure willful on the part of SCO.

A good chunk of the opinion goes on about SCO's public relations blitz demonstrating code violations at conferences, through interviews and other publicity events.  The next section details IBM's motion to compel and notes the definition of specificity SCO required from IBM in its discovery requests.  This is followed by a lengthy history of the discovery procedure in this case including who was supposed to provide what and to what detail.  The problem the Court has here is that SCO never pulled their case together by complying with court orders to disclose exactly what code they claimed existed in IBM products which infringed on their intellectual property rights.  Moreover, it seems as if SCO wanted to get IBM to produce as much detail as possible so they could point to parts of it for their claims.  The Court did not think highly of this tactic.

From the opinion:

Thus according to SCO, IBM should be able to determine what was misappropriated without being given substantial detail. Further, SCO argues that it was IBM’s own roadblocks that hindered SCO in identifying particular misused material so IBM cannot now claim that they were somehow prejudiced. 

The court finds SCO’s arguments unpersuasive. SCO’s arguments are akin to SCO telling IBM sorry we are not going to tell you what you did wrong because you already know. SCO received substantial code from IBM pursuant to the court’s orders as mentioned supra. Further, SCO brought this action against IBM and under the Federal Rules, and the court’s orders, SCO was required to disclose in detail what it feels IBM misappropriated.

Given the amount of code that SCO has received in discovery the court finds it inexcusable that SCO is in essence still not placing all the details on the table.  Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that “you know what you stole I’m not telling.” Or, to simply hand the accused individual a catalog of Neiman Marcus’ entire inventory and say “its in there somewhere, you figure it out.”

The opinion is here via Groklaw.  Commentary is in the Inquirer, Fox News, the San Jose Mercury News, and CNET.

June 30, 2006 | Permalink

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Comments

The Associated Press wire service report (http://www.foxnews.com/wires/2006Jun30/0,4670,LinuxLawsuit,00.html), where writer Paul Foy flubs District Judge Dale Kimball's first name, makes an interesting contrast against Foy's report two years ago (http://www.usatoday.com/tech/news/techpolicy/2004-05-21-linux-test-suit_x.htm).

In light of Magistrate Judge Wells' order, do you think Paul Foy was retracting any of his earlier statements? Particularily the one Foy made about "gaping liability"?

Posted by: Ned Ulbricht | Jul 1, 2006 6:48:07 PM

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