The SCO Group and International Business Machines Corp. remain at odds about whether the other company has provided court-compelled information in their dispute over computer operating system source code.
SCO's $5 billion lawsuit contends that IBM violated its license with SCO by placing parts of SCO's Unix computer operating system source code into the code for Linux, a freely distributed system that is developed and enhanced by contributors worldwide. IBM and other companies make computers that use Linux.
The IBM/SCO contract allowed IBM to use Unix in its own products but prohibited Unix from being transferred outside IBM.
In a hearing Wednesday before U.S. District Judge Dale Kimball regarding four motions, SCO attorney Brent Hatch contended that IBM, through a motion for summary judgment, wants to cut off discovery in the case, in part by keeping SCO from getting needed information about IBM's code contributions to Linux and IBM's own Linux versions, called AIX and Dynix.
But IBM attorney David Marriott said SCO's case is about a comparison between Linux and Unix source code, something SCO has had for a long time, and that IBM's Dynix and AIX code isn't needed for that comparison.
He also said that a SCO employee's Unix/Linux code comparison found only 300 somewhat similar lines from tens of millions of lines of code, but those lines are neither legally significant nor truly similar because the employee edited and juxtaposed lines to make the comparison.
U.S. Magistrate Brooke Wells has filed a few orders compelling discovery from both companies. Each on Wednesday accused the other of failing to comply with at least some portion of the orders. Marriott said SCO hasn't complied with Wells' order
about what lines of Linux code are infringing SCO's Unix copyrights and which were added by IBM. SCO hasn't provided evidence because, "simply put, it has none," he said.
Discovery was at the heart of another motion discussion. SCO attorney Mark James said an IBM counterclaim would unnecessarily expand the scope of the already complicated case. If granted, the counterclaim would move the case beyond SCO's original claim and include matters about all IBM Linux-related activities and any third-party contributions to Linux, he said.
That would result in "new facts and new legal issues that go far beyond" SCO's original claim and in "expensive and time-consuming discovery," causing SCO to have to investigate many third-party Linux contributions, including those made before IBM made any Linux contributions, he said.
"The 10th counterclaim injects discovery, complexity and burdens in this case," James said.
SCO's interest in third-party Linux contributions is focused only on those who worked with IBM on them, he said.
"IBM has stonewalled us on discovery," then comes before the court with a broad counterclaim that would result in a more-complex case, he said.
James said SCO believes IBM wants to control the timing of litigation through "burdensome" counterclaims.
The SCO/IBM case is being closely watched worldwide because of potential ramifications not only to those companies but also to Linux and Microsoft Corp., whose products compete with Linux.
Kimball has scheduled a five-week trial in the case, set to begin Nov. 1, 2005. On Wednesday, he took all four motions that were discussed under advisement.
SCO is involved in several court cases on the Unix/Linux issue, including one with Novell Inc. about ownership of the Unix copyrights.
Contributing: Angie Welling
E-mail: bwallace@desnews.com