U.S. magistrate's ruling helps both sides in IBM suit

Both the SCO Group and International Business Machines Corp. appeared to get at least some of what they wanted from a Wednesday federal magistrate ruling.

Lindon-based SCO's $5 billion lawsuit against IBM contends that IBM violated its license with SCO by placing parts of SCO's Unix computer operating system source code into Linux, a freely distributed operating system that is developed and enhanced by contributors worldwide.

IBM has its own Unix version, called AIX. Dynix is another, developed by Sequent Computer Systems, now owned by IBM.

With the case still in the discovery phase, U.S. Magistrate Brooke Wells on Wednesday gave SCO more time to comply with her earlier order relating to IBM's request for information from SCO. Wells also required IBM to provide certain information SCO has sought.

SCO was given 45 days to comply with Wells' Dec. 12 order to provide "all specific lines of code" that IBM is alleged to have contributed to Linux from either AIX or Dynix. Wells described SCO's "good faith efforts" to comply with the prior order but noted that SCO "had difficulty" obtaining items by her earlier deadline of Jan. 12.

SCO also is to identify lines of code from its Unix System V from which IBM's contributions from AIX or Dynix are alleged to be derived and to specify "all lines of code in Linux that it claims rights to."

Meanwhile, IBM was given 45 days to provide releases of AIX and Dynix consisting of "about 232 products" that were mentioned at a Feb. 6 court hearing. SCO then will file more documents with the court to indicate "if and how these files support its position and how they are relevant."

"The court will then consider ordering IBM to produce more code from AIX and Dynix," Wells wrote in her order.

Wells said SCO should try to get all relevant information about Linux contributions that are in the public realm but ordered IBM to provide SCO with any non-public contributions it has made to Linux.

IBM also was ordered to produce documents and materials generated by or possessed by employees involved in its Linux work, including top-level executives.

"The court finds these materials are relevant because they may contain information regarding the use or alleged misuse of source code by IBM in its contributions to Linux," Wells wrote.

Wells also wants IBM to identify a sample of potential witnesses — "1,000 of the most important prospective trial witnesses" — as agreed on by the two companies. SCO had wanted IBM to give more information about approximately 7,200 potential witnesses identified by IBM.

SCO spokesman Marc Modersitzki declined to comment on the order, saying the company is respecting Wells' request to limit public remarks about the suit. IBM spokeswoman Trink Guarino also declined comment Wednesday afternoon, saying that the company had just received the order and nonetheless does not comment on pending litigation.

The trial is expected to begin in April 2005.

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