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2/9/2005
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IBM and SCO Share Split Decision In Latest Linux Sparring

The wheels of justice continue to turn slowly in The SCO Group's $5-billion lawsuit against IBM, despite IBM's attempts to speed the process by requesting certain summary judgments that get to the heart of the case. The Utah U.S. District Court judge presiding over the case essentially rendered a split decision between the companies when he ruled Tuesday that he would allow IBM to maintain its claim that it hasn't infringed up

The wheels of justice continue to turn slowly in The SCO Group's $5-billion lawsuit against IBM, despite IBM's attempts to speed the process by requesting certain summary judgments that get to the heart of the case. The Utah U.S. District Court judge presiding over the case essentially rendered a split decision between the companies when he ruled Tuesday that he would allow IBM to maintain its claim that it hasn't infringed upon SCO's copyrighted Unix System V code but declined to make a decision on the claim without further information.The bottom line for Linux users is that there is no bottom line yet. There's nothing stopping businesses from using Linux, and it could be a year or more before a final decision is made on SCO's case against IBM. What the business world should take away from U.S. District Judge Dale Kimball's rulings is that the judge has demonstrated a sensible approach to the case. As long as the case continues along its current path, Linux users should feel confident that a fair and honest ruling will be made.

SCO had been looking for Kimball, U.S. District Judge for the U.S. District Court for the District of Utah, Central Division, to dismiss the key IBM counterclaim that the technology giant doesn't "infringe, induce infringement of, or contribute to the infringement of" any SCO copyright through IBM's Linux activities and that "some or all of SCO's purported copyrights in Unix are invalid and unenforceable," according to Kimball's ruling Tuesday.

Kimball was not impressed with SCO's reasoning, which he noted has changed over time. SCO's original reason for requesting the dismissal was that this counterclaim would be settled during the course of SCO's lawsuit against auto parts retailer AutoZone Inc., which SCO sued in March 2004 simply for using Linux. That case was stayed pending the outcome of the IBM suit, causing SCO to change its argument for this motion to dismiss. SCO then said it wanted the motion to dismiss because Unix copyright infringement doesn't really pertain to its case against IBM. The real reason for its suit against IBM, SCO now says, is IBM's continuing use of the AIX and Dynix Unix operating systems even after SCO terminated IBM's Unix licenses.

IBM contends that the counterclaim that it doesn't infringe on Unix is at the crux of not only its defense against SCO but also of the AutoZone case. Kimball on Tuesday, however, refused to grant IBM's request for summary judgment on this counterclaim against SCO. IBM was hoping that the court had enough information to determine once and for all that IBM had not infringed on SCO's Unix copyrights, but Judge Kimball decided that more work has to be done to determine "whether code in Linux is substantially similar to code in the Unix software."

Kimball wrote in Tuesday's decision that there is a "complete" lack of evidence to support SCO's claim that portions of Unix System V source code, which the company claims to have bought from Novell, were illegally contributed to the Linux kernel. But the judge also pointed out that granting summary judgment would be premature, given that IBM has not yet provided SCO with all of the AIX and Dynix source code it requested.

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