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SCO Files Another Request to File Another Overlength Memo, This One Re Discovery
Thursday, July 15 2004 @ 08:41 AM EDT

SCO clearly has told its lawyers to win something, and they are trying hard to prevail at the August 4 hearing on IBM's summary judgment cross motion for a declaratory judgment of non-infringement.

Their own Amended Motion to Dismiss or Stay IBM's 10th counterclaim is heard that day too, but they seem to me to be focused more on the IBM cross motion, not that there hasn't been lots of paper on that motion to dismiss too. Now they have filed another Ex Parte Motion for Leave to File Over-Length Memorandum Re Discovery, and the court has granted them permission to do so. A lot of filings about discovery and IBM's alleged failure to provide what SCO wants, which is technically separate from the August 4 matters, but obviously being used by SCO, because it is excusing its own failures by pointing the finger at IBM in a desperate effort to block an IBM win on the summary judgment. They clearly think they have a shot at beating IBM on this one and intend a PR blitz to then persuade the world that it means something momentous.

This is the most intensive flurry of legal paper we've seen from SCO yet. Leaving aside their Motion to Dismiss IBM's 10th Counterclaim, here's what has happened so far:

Now we have the current request to file another overlength memorandum, re discovery. I think that's everything. They just can't say enough bad things about IBM. There is more, actually, but it isn't up on Pacer yet. Evidently they would like some good press so the stock will go back up and they can get some idiots to take a license. At least that is the story that has been reported.

One thing is for sure. If they don't defeat IBM's summary judgment motion, it won't be for lack of trying. The funny part is that while a win for IBM would be curtains for SCO, I don't think losing it does anything to IBM but make them wait a bit for victory.

What they have wanted from day one is to see all of IBM's cards, the code, the email, the logs, the everything. They filed this lawsuit, I gather, without having evidence in hand, just figuring on going on fishing trips. The court, to date, has not permitted them to do that, because they are the plaintiff, and the plaintiff is supposed to clearly tell what the alleged offence is.

So far, IBM has pointed out, SCO simply hasn't told anybody what precisely SCO's beef is regarding the alleged copyright infringement they told the world IBM was guilty of all those moons ago. So they'd like a judgment from the court that they are not guilty. SCO would like to do discovery *before* it tells. All the paper is about that, in my view, and is a last-ditch effort to avoid the inevitable. They want to comb through everything to try to justify what they have done to IBM. Also, I'm beginning to suspect that they are using the IBM case as their search mechanism, looking for proof they can use for end user lawsuits regarding methods and procedures, their unique concept of what is a derivative work. Why else would they want every single version of AIX from the founding of the world?

They may win some more time for discovery, I suppose. That would hardly put a dent in IBM's armor, though, and IBM will just keep on moving forward with inevitability. It's impossible to predict what a judge will do with certainty, only what he ought to do. But I can't imagine the court making IBM show all that SCO is asking for unless SCO gets specific first, and probably not even then. Unfettered access is a ridiculous request. There are limits to discovery, and one of them is you don't get to move in to the other side's headquarters and just start going through the files. It's their lawsuit, so they are supposed to tell the other side exactly what they allegedly did wrong. And I don't think they can be specific. If they could, they would. That is the easy way to defeat a summary judgment motion, just by listing some facts in dispute that a jury needs to decide. It's SCO's dilemma that for whatever reason they seemingly can't or won't.

IBM in its Cross Motion wrote that they asked SCO to tell them precisely what lines in Linux code they claim ownership of and the "precise lines of code in the UNIX software from which SCO alleges such Linux code is copied or derives." Unless they can show that match, IBM said, they really can't show copyright infringement. So it was put up or shut up time for SCO. Instead we have the blizzard of paper saying that IBM needs to show more code and everything else SCO can think of. Some of the declarations and exhibits are sealed, so it is possible SCO is trying to come up with something. Because it is sealed, we can't know until the hearing, which is blessedly soon, so this paper blizzard will finally come to an end. Reading all their junk is making my SCO allergy flare up again.

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