Judge to SCO: "Where's your evidence?"

The federal judge overseeing the SCO Group's suit against IBM regarding Unix and Linux has thwarted an IBM attempt to defang SCO's claims, but he also voiced loud scepticism about SCO's case.

IBM in 2004 sought a declaration that its Linux activities hadn't violated SCO's purported Unix copyrights, as SCO had claimed publicly and in its lawsuit. Although US District Judge Dale Kimball didn't grant that declaration - called a partial summary judgment - he sharply criticised SCO for not producing evidence for its case.

"Despite the vast disparity between SCO's public accusations and its actual evidence - or complete lack thereof - and the resulting temptation to grant IBM's motion, the court has determined that it would be premature to grant summary judgment," Kimball wrote on Wednesday.

"Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the Unix software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities."

The opinion bodes poorly for SCO, intellectual property attorneys agreed.

Carr & Ferrell attorney John Ferrell said: "Based on the scathing language of the ruling, it appears that SCO just barely dodged a possible knockout punch in this round. There's very little that can be more disastrous to your case than an angry federal judge."

Allonn Levy of law firm Hopkins and Carley voiced a similar view.

"Even though you have to say IBM did not hit the home run, if you read that order, you have no choice but to see this as another setback for SCO," Levy said. "This judge is painting an ominous picture for SCO."

The copyright issue is central to SCO's position in the $5bn case, which sent shock waves through the computing industry when SCO began it in 2003. SCO asserts IBM violated its contract with the company by moving proprietary Unix technology to open-source Linux.

Had IBM won its partial summary judgment motion, it would have been devastating for SCO's case. "If you win on that point, what's left? It seems your claim of breach of contract... falls apart," Ferrell said.

Kimball also took issue with SCO's varying position on exactly how it believes IBM violated SCO's copyrights. Initially, the company said it would argue that IBM infringed SCO copyrights by moving Unix code to Linux. But when SCO filed its main claim, it argued merely that IBM infringed only by continuing to ship a version of Unix, called AIX, after SCO said it had revoked IBM's licence to do so.

However, Kimball pointed out several occasions in which SCO continued to make the earlier, broader argument. In addition to several references in the IBM case, SCO also put the claim at the centre of its lawsuit against Linux user and former SCO customer AutoZone.

Kimball called it "puzzling" that SCO denies it's making this broader copyright infringement claim.

The case also has entangled Unix licensee DaimlerChrysler and Linux sellers Red Hat and Novell. However, customers seem undaunted. Linux server sales continue to boom despite SCO's demands that customers pay Unix licence fees or face legal action.

IBM had argued that it didn't need to release any source code because SCO already had all the evidence it needed to make its case: the original Unix source code and the publicly available Linux source code. But Kimball agreed with SCO's position that the release of more source code could be necessary.

Kimball's opinion in the matter dovetails with that of Magistrate Judge Brooke Wells, who in January ordered IBM to share the source code underlying IBM's AIX and Dynix versions of Unix, as well as programmers' comments.

SCO, a former Linux seller that now focuses just on its Unix products, has been struggling for years. Its legal case has been expensive, though in 2004 it capped its expenses with law firm Boies, Schiller & Flexner.

The door for partial summary judgment hasn't closed all the way for IBM. Big Blue is free to renew or refile the motion after the completion of the discovery process, in which the litigants examine each other's information.

SCO might uncover more information but Levy has a hard time understanding why SCO would have withheld evidence at this stage.

"Especially when you're talking about the danger of having summary judgment or even partial summary judgment granted against you, it's pretty difficult to think of a reason you would withhold all of your evidence," Levy said.

Stephen Shankland writes for CNET News.com.