SCO has long-running litigation against IBM, accusing it of essentially stealing portions of UNIX (which SCO claims to own) and including them in Linux. The case has received a great deal of media attention, particularly in the web-based media and has been billed as a make-or-break case for open source. Even of something catastrophic happens in the case it would be unlike to kill all open source, but it would be a very significant setback for Linux and leave the rest of the open source community under a cloud.
The international open source community, perhaps without a clear understanding of how US litigation works, has been rather worried by the length of time the process has taken and the numerous extensions which have been given to SCO.
Fortunately, it doesn't look like there will be a catastrophe. A new ruling on the claims made by SCO has stuck most of them down because SCO repeatedly refused to be concrete and specific. Judge Brooke Wells is pretty clear on a number of points, and it now appears that some of the earlier perceived leniency towards SCO may have been related to ensuring that everything was watertight and that the respective sizes of the parties was not a determining influence.
In the following extract from the ruling I have removed footnotes and added emphasis.
IV. Prejudice
IBM argues that SCO's lack of specificity is prejudicial because without more detail it would have to undertake a massive analysis of multiple versions, files, and lines in Unix, AIX, Dynix and Linux to defend itself. This analysis would allegedly take substantial time and create additional delay in the resolution of this case.
In rebuttal SCO states
"It should be remembered that it is IBM, not SCO, that made these contributions. IBM has ready access to the engineers who made the disputed disclosures to assist in identifying the nature of the contribution, whether it originated independently from protected material, how it is used, and whether it was in fact disclosed to the Linux community."
Thus according to SCO, IBM should be able to determine what was misappropriated without being given substantial detail. Further, SCO argues that it was IBM's own roadblocks that hindered SCO in identifying particular misused material so IBM cannot now claim that they were somehow prejudiced.
The court finds SCO's arguments unpersuasive. SCO's arguments are akin to SCO telling IBM sorry we are not going to tell you what you did wrong because you already know. SCO received substantial code from IBM pursuant to the court's orders as mentioned supra. Further, SCO brought this action against IBM and under the Federal Rules, and the court's orders, SCO was required to disclose in detail what it feels IBM misappropriated. Given the amount of code that SCO has received in discovery the court finds it inexcusable that SCO is in essence still not placing all the details on the table. Certainly if an individual was stopped and accused of shoplifting after walking out of Neiman Marcus they would expect to be eventually told what they allegedly stole. It would be absurd for an officer to tell the accused that "you know what you stole I'm not telling." Or, to simply hand the accused individual a catalog of Neiman Marcus' entire inventory and say "its in there somewhere, you figure it out."
Without more specificity than SCO has provided some very important questions that could materially impact this case are nearly impossible to answer. For example, is the code that comprised the method or concept still in use in Linux? If not, then damages may become nominal instead of in the billions. Or, it may be possible that the code comprising a method or concept was already disclosed pursuant to some other license such as the BSD License. Since Linux uses some BSD code this could have a substantial impact upon SCO's case. Especially since SCO claims to be a successor in interest to some of the technology involved in the dispute between Unix System Laboratories and The University of California. Without the code, however, there is no way to ascertain exactly what the impact is of prior disclosures that may involve the code at issue in the instant case.
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This case is being followed blow-for-blow by both the pro open source groklaw website and SCO's share price.
