SCO wants suit vs. IBM to go to trial

International Business Machines Corp. on Thursday asked a federal court judge for summary judgment in a lawsuit SCO Group Inc. filed against it.

But a lawyer for Lindon-based SCO says factual matters and contradictory testimony from witnesses warrant a trial.

SCO contends that IBM violated a licensing contract by putting SCO Unix source code into Linux, a free "open source" computer operating system.

SCO attorney Stuart Singer said the matter involves 40,000 pages of exhibits. "It doesn't sound like a summary judgment case to us, Your Honor," Singer told U.S. District Judge Dale Kimball.

What's more, he said, some of the witnesses deposed by IBM have provided testimony that runs counter to what some of those same witnesses had said in the past, and SCO wants to cross-examine those witnesses at a trial.

But IBM attorney David Marriott said SCO's case is based on an overly broad interpretation of a contract provision requiring IBM to keep confidential Unix System V operating system source code that IBM had licensed.

The technologies at issue in the case are source code developed by IBM and IBM-owned Sequent Computer Systems on their own and thus have no connection to System V and are not part of the confidentiality agreement, he said.

Marriott likened the situation to a car that used some SCO technology. Under SCO's interpretation of the agreements, IBM "couldn't take the dice off the mirror and put it in another car."

But Singer said various derivatives and modifications produced by IBM and Sequent — such as AIX and Dynix — would not exist without Unix System V. Rather than dice, System V is "integral" to the derivatives, and IBM was required by the contract provision to protect any derivatives the same way it would protect System V itself, he said.

Kimball took the matter under advisement.

SCO also is in litigation with Novell Corp. about which of those companies owns the Unix copyrights. Kimball has pushed back the trial in the IBM case until the Novell case is resolved.

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