SCO fights IBM in court

The SCO Group Inc. and International Business Machines Corp. were in court again Wednesday, with each side claiming the other took copyrighted technology and misused it.

Lindon-based SCO's multibillion-dollar suit contends that IBM violated a licensing contract by putting SCO Unix source code into Linux, a "kernel" used in a free "open source" computer operating system.

In Wednesday's hearing before U.S. District Judge Dale Kimball regarding several motions for summary judgment, IBM attorney David Marriott said SCO has claimed that more than a million lines of SCO code were placed in the Linux kernel, but IBM found only 326 lines supposedly infringing SCO copyrights — or about one-five-thousandth of the kernel.

But Marriott raised several points about the 326 lines. He said that Novell, not SCO, owns the copyrights to that material — that is the basis for a Novell lawsuit against SCO — and that SCO transferred any rights it did have to United Linux LLC, a joint Linux venture with other companies.

Marriott said IBM actually had a license to those 326 lines of code but contributed none to Linux, and that SCO's own Linux products included the supposedly infringing code.

In a familiar refrain in the litigation, Marriott said SCO has been asked to identify infringing code but has yet to do it "with specificity" as required by previous court orders, putting IBM in "an impossible position." Marriott added that SCO cannot show there is substantial similarity between Unix and Linux, in part because the supposedly infringing code lines are "essentially random numbers, essentially random phrases."

SCO attorney Stuart Singer countered that SCO indeed owns copyrights to Unix and UnixWare and that no one involved in the joint venture meant to give up Unix rights. He bristled at IBM's narrow definition of the Linux kernel, insisting that there are "thousands and thousands" of lines of SCO-copyrighted infringing code that IBM not only infringed but "induced others" to do likewise.

"Those thousands of similarities did not occur by coincidence," Singer said.

He pushed for a trial on the matter, even if only 326 lines of code are at issue. If one were to remove those 326 lines from Linux, "Linux simply would not work," Singer said.

On another motion, Marriott turned the tables on SCO, saying IBM produced and copyrighted more than 700,000 lines of code placed in 16 products and that SCO copied and distributed those copyrighted works without authority to do so.

But SCO attorney Edward Normand said IBM counterclaims are simply retaliation for SCO trying to protect its intellectual property through litigation. "IBM comes to the court with unclean hands," Normand said.

Kimball has pushed back the trial in the IBM case until the SCO/Novell case is resolved.

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