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Kimball Rules on 6 Motions - SCO's Denied or Moot; IBM's Denied But Can Renew/Refile After Discovery Complete
Wednesday, February 09 2005 @ 02:15 PM EST

Here at last is Kimball's ruling on the parties motions involving the contract claims and the kitchen sink motion SCO threw on top. SCO's Motion to Dismiss or Stay Count 10 of IBM's 2nd Amended Counterclaims is denied. Period. Their 56(f) Motion is moot. But IBM did better. Here's the list of motions that were denied without prejudice, meaning they can renew or refile when discovery is complete, which I am sure they will:

  • Motion for Partial Summary Judgment on Claim for Declaratory Judgment of Non-Infringement
  • Motion for Partial Summary Judgment on SCO's Breach of Contract Claims
  • Motion for Partial Summary Judgment on its Eighth Counterclaim for Copyright Infringement

The last two aren't even fully briefed and have not yet even been argued. So he's just decided that now is not the time for any dispositive motions. I think we have Judge Wells partly to thank for that, unfortunately, but also keep in mind that motions for summary judgment are decided while construing all facts and making reasonable inferences in the light most favorable to the non-moving party. Judge Kimball is bound by that rule, and so he's decided he wants a complete picture first. IBM's motion to strike materials was denied, because, he says, "the declarations do not pertain to the merits of IBM's motion".

What does it all mean? That he's decided that he can't decide IBM's motions for partial summary judgment until all discovery is done, and he orders that nobody on either side is to file any more dispositive motions until then unless the parties stipulate that the claim is ripe for decision. It's hard to win partial summary judgments, but IBM almost did, and it's clear they will on renewal or refile, at least on the infringement counterclaim, unless SCO puts some evidence on the table. Meanwhile, IBM, by filing, has forced SCO to declare its position, and reveal its lack of evidence, and Judge Kimball has understood that part well.

If IBM renews their motions, SCO has to submit brand new opposition papers. Or, if IBM elects, it can refile fresh, depending, I suppose, on what comes out in discovery. But as of today, it's clear he isn't leaning toward SCO in some important areas.

You'll like this part. On page ten, Judge Kimball writes:

"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. Further SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights.

"Nevertheless, 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 on IBM's Tenth Counterclaim."

He resisted the strong temptation to rule favorably on IBM's Motion only, he writes, because he isn't positive yet that all you need to compare are the Linux kernel and the UNIX code. And he isn't yet persuaded that the discovery concerning AIX and Dynix is irrelevant to the question of whether code in Linux is substantially similar to code in UNIX.

This is a very strong hint to SCO that unless they can come up with some evidence, they are dead in the water as far as Kimball is concerned on IBM's copyright counterclaim. As for the rest, their only hope, which is hanging by a thread at this point -- or a hope and a prayer -- is if they can somehow prove their ladder theory of copyright infringement. That is an uphill climb, if I may be allowed to put it that way.

It's also obvious this judge isn't buying SCO's doublespeak. Read his scathing rejection of their "puzzling" denial that it had ever alleged a claim against IBM for copyright infringement arising out of its use, reproduction, or improvement of Linux. Kimball isn't buying what they are selling here, writing: ". . . it clearly has alleged such a claim." He mentions repeatedly the elusive MIT consultants, quoting from Sontag, Stowell and Darl. All that bragging has come home to haunt them now.

In short, it isn't over yet, but unless SCO can pull a rabbit out of its hat by the end of discovery, the handwriting is on the wall, and I'd say it's looking mighty fine for Linux. Meanwhile, the business world isn't impressed with SCO's claims and businesses appear willing to move forward with Linux no matter what. That article begins, "Linux has won the credibility game..."


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