In September, IBM asked U.S. District Judge Dale A. Kimball to declare that its use of Linux had not infringed on SCO's purported Unix copyrights. The Lindon software company, in its March 2003 suit against IBM and in subsequent suits against others, contends its Unix code was illegally incorporated into the freely distributed Linux operating system.
IBM said SCO officials have repeatedly boasted in public that they have significant evidence of Linux-related copyright infringement. If so, IBM's attorneys argued, there is no further need for evidence gathering by SCO; and because the Utah company thus far has failed to prove its claims in court, a judicial declaration clearing IBM is in order.
Kimball cited several of the Linux-related statements. In April 2003, SCO's senior vice president, Chris Sontag, claimed there were "many instances where our proprietary software has simply been copied and pasted . . .'' In August 2003, SCO Chief Executive Darl McBride declared: ''The DNA of Linux is coming from Unix."
In June of the same year, SCO claimed it had hired three teams of experts - among them MIT mathematicians - who found Unix code in Linux.
However, none of that proof had been convincingly submitted in court, IBM countered - a point Kimball did not ignore: "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 back the claims.
Still, Kimball declared IBM's motion premature. He said that mere comparison of the Linux kernel and the Unix code, as suggested by IBM, is not sufficient to settle the claims; and in particular SCO's quest for additional evidence concerning IBM's AIX and Dynix applications is warranted.
The judge - pointedly reminding IBM it can renew its dismissal bid when evidence gathering is completed - acknowledged he was denying the summary judgment motion "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 . . ."
Kimball also rejected IBM's motion to strike some materials and declarations the Utah company had filed in its arguments against summary judgment.
IBM has filed two other motions for partial summary judgment - one targeting SCO's breach-of-contract claim, and the second relating to another copyright infringement argument. Kimball, noting briefs are still due Feb. 25 on those motions, postponed ruling.
"We have been advised by our lawyers not to comment on the rulings," SCO spokeswoman Lisa Salmon said.
IBM spokesman Michael Darcy also refused to discuss the latest developments in the case, last scheduled for a five-week trial beginning Nov. 1.
l Additional stories on SCO Group and its parent company, The Canopy Group, are available at http://www.sltrib.com.
What the judge said
Comments from U.S. District
Judge Dale Kimball's rulings:
l "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."
l Kimball said he denied one IBM dismissal bid "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."