IBM Seeks Knockout Blow in SCO Case

IDG News Service - A recent court filing by IBM demonstrates the company's growing conviction that it will prevail in its legal dispute with The SCO Group Inc., according to lawyers following the case.
In an amended counterclaim to SCO's lawsuit filed March 26, IBM asked the U.S. District Court for the District of Utah to enter a declaratory judgment in its favor. IBM asked the court to rule that it hasn't infringed on SCO's copyright and hasn't breached its contractual obligations to SCO. The filing further asks the court to rule that Lindon, Utah-based SCO, which was at one time a Linux vendor, can't impose restrictions on the software that it previously distributed under Linux's open-source software license.
By seeking a declaratory judgment, IBM appears to be indicating that it has conducted an internal analysis of SCO's claims and found them to be without merit, said Jeff Norman, an intellectual property partner at Chicago-based law firm Kirkland & Ellis LLP. A judge could issue a judgment as soon as the discovery process is over and before the case goes to trial.
"It just means that they didn't find any smoking gun. If they had found something really bad, they probably would have gone to SCO and talked settlement," Norman said.
It would be typical in a case like this for IBM to conduct an internal investigation to determine whether any of SCO's claims were true, Norman said. Such an investigation would involve interviewing and reviewing e-mail and code contributions from IBM's Linux programmers, he added.
IBM has over 7,500 employees involved in various aspects of its Linux efforts, including more than 600 developers who work in the company's Linux Technology Center.
Jeffrey Neuberger, a partner at Brown Raysman Millstein Felder & Steiner LLP in New York, said he agrees that the filing appears to show growing confidence on the part of IBM.
"They're saying to the judge, 'We don't know what SCO is talking about; there is no infringement,' " he said. "They must feel very comfortable that there's no infringement."
Because IBM's filing seeks the broad judgment that IBM hasn't infringed on "any valid or enforceable copyright owned by SCO," a declaratory judgment in its favor would prevent SCO from bringing up new copyright claims later in the trial and would have a devastating impact on SCO's case, Neuberger said.
"If the judge comes out and says there is no copyright infringement, then essentially there is nothing else to fight over. It would be the knockout blow to SCO's case," he said.How much longer IBM and SCO will continue with the discovery stage of the case remains unclear. In a complicated case, the discovery process can last for years, Neuberger said.
IBM and SCO declined to comment on the court filing.
McMillan writes for the IDG News Service.

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