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.