IBM wins victory of sorts in SCO battle

IBM won a tactical victory on Friday in a legal battle with SCO Group when a judge ordered SCO to show within 30 days the Linux software to which it believes it has rights and to point out where it believes IBM is infringing.

But SCO also said it will open a new copyright infringement claim in its legal attack.

In a hearing in Salt Lake City, Federal Judge Dale A Kimball required SCO to produce two key batches of information IBM had sought in the case.

In one batch, called Interrogatory No. 12, IBM sought "all source code and other material in Linux...to which plaintiff (SCO) has rights; and the nature of plaintiff's rights." In the second, Interrogatory No. 13, Big Blue sought a detailed description of how SCO believes IBM has infringed SCO's rights and whether SCO ever distributed the source code described in Interrogatory No. 12.

The information IBM sought is at the heart of the case, a bold lawsuit SCO began in March that alleges IBM moved technology from Unix to Linux against the terms of its contract with SCO, violating trade secrets in the process. SCO is seeking $3bn from Big Blue, and is also trying to compel Linux-using corporations to license SCO's Unix. The judge's decision is one of the first moves in a case that will affect not just IBM but also other computing giants including Oracle, Hewlett-Packard, SAP and Dell that have embraced Linux.

IBM in August countersued with four patent violation claims and a defence that charges SCO with violating the terms of the General Public Licence (GPL) that governs Linux.

In the spring, when SCO first said Unix code had been copied into Linux, CEO Darl McBride told silicon.com's sister site News.com: "We will be happy to show the evidence we have at the appropriate time in a court setting." But thus far the company hasn't done so.

IBM welcomed Kimball's decision.

An IBM spokeswoman said: "IBM has said all along SCO has failed to show evidence to back its claims. We are very pleased the court has indicated it will compel SCO to finally back up its claims instead of relying on marketplace FUD."

With Interrogatory No. 12, IBM is essentially seeking to pin down what precisely SCO believes is in Linux that infringes Unix intellectual property. Though it hasn't said so in court, SCO executives in interviews have pointed to Unix technology including read-copy update (RCU), symmetrical multiprocessing (SMP), non-uniform memory access (NUMA) and IBM's Journaled File System (JFS).

Work on that software took place at IBM or a company called Sequent it acquired. SCO doesn't dispute that IBM owns copyrights to that software but does argue that the agreement under which IBM and Sequent licensed Unix prohibit Big Blue from making the software public.

Interrogatory No. 13, in which IBM is trying to find out if SCO distributed Linux software that violates SCO's Unix intellectual property rights, would provide evidence that relates to IBM's counterattack. IBM argues that SCO's distribution of a Linux product means it has agreed to the GPL's terms and therefore given permission to use that particular Unix technology in Linux.

Stephen Shankland writes for News.com